PRE-PROBATE

Locate the Will and give it to the attorney so that it can be deposited with the Clerk of Circuit Court, Probate Division. A person having possession of another's will is required to deposit it with the Clerk within ten days of learning that person has died. Make arrangements for the funeral. The surviving spouse or if none then the next of kin has the right to make decisions relating to burial. Obtain ten certified copies of the death certificate, with five listing the cause of death and the other five not listing the cause of death. Cancel the Decedent’s health insurance. The Estate may be entitled to a refund of the unearned insurance premium. Locate any life insurance policies. Contact the Decedent’s employer for group life insurance or other benefits. Gather recent bank records, and records of real estate owned. Bring the papers and records of the decedent to the law office to determine the extent of the estate. Prepare a list of the names and addresses of the beneficiaries of the estate. Do not pay bills or agree to pay bills until consulting with the attorney.


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RRW Spring 2010
OPENING THE ESTATE

If the Will contains a proper affidavit of the testator and witness executed in the presence of a notary public, it may be "self proved" and no additional proof is needed. If the Will is not self-proving, the Will may be proved by the oath of one of the witnesses. The witness may appear before a probate clerk and sign an oath regarding the execution of the Will. If the Will is not self-proving and the witness resides in another state, a commissioner (usually a notary) in the other state may be appointed by the Florida Circuit Court Judge to take the oath of a witness to the Will. Depending largely on which County is involved, a bond may be required. The bond is an expense of the Estate, and is designed to provide protection to creditors and beneficiaries in case the Personal Representative breaches his or her fiduciary obligation. Click here Sample Probate Bond Rates for a sample rate chart. 

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ADMINISTRATION

In the administration of an estate, the personal representative must promptly marshall the assets of the estate, that is, he or she must locate and inventory all of the decedent's assets. An inventory is required to be filled within 60 days after issuance of the Letters of Administration. The inventory is primarily concerned with cars, stocks, bank accounts, real estate, and valuable collections of some sort or another, the inventory does not usually consist of a listing of routine furniture and furnishings. If decedent had a safe deposit box, it would be necessary to view the contents. The personal representative may also need to file claims for life insurance benefits, social security, V.A., or Medicare benefits.

Intestate (no will) - Effective October 1, 2011, a surviving spouse's intestate share of an estate will go up from 50% to 100% of the estate if the decedent's descendants are also descendants of the surviving spouse; and if the surviving spouse has no other children.  If the surviving spouse has descendants that are also descendants of the decedent, but the surviving spouse also has a descendant not related to the decedent, then the surviving spouse's intestate share is half of the estate. The lineal descendants of the decedent would inherit the remaining half of the estate. This is a change in the law. Previously the law was that if there are surviving descendants of the decedent, who are all also lineal descendants of the surviving spouse, then the surviving spouse receives the first $60,000 in property of the estate, plus one-half of the remaining balance of the estate subject to distribution.
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CLAIMS

If all known or ascertainable creditors have been properly served with a copy of the Notice to Creditors, all claims against the decedent that existed prior to the decedent's death not filed with the Court within three months from the first publication of the Notice to Creditors are barred, except claims based on federal law. Review with your attorney all claims that have been filed and determine those to which objections should be filed. Generally, creditors are paid before heirs inherit their money, but there are exceptions.

When there isn't enough money to pay all the creditors, this is the order in which claims are paid:

(a) Class 1.--Costs, expenses of administration, and compensation of personal representatives and their attorneys' fees. [The more jaded among us would say that the lawyer legislators drafted a law ensuring the lawyers got paid first, but in actuality, if the lawyer and P.R. (Executor) weren't paid first, there would be no incentive to do the work to secure the funds for burial and final medical expenses, which would result in the Government having to bury many people as indigent, when in fact there were some assets available satisfy debts.]

(b) Class 2.--Reasonable funeral, interment, and grave-marker expenses...not to exceed ... $6,000.

(c) Class 3.--Debts and taxes with preference under federal law (and Medicaid, i.e., nursing home bills paid by the Government).

(d) Class 4.--...medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending him.

(e) Class 5.--Family allowance. (Up to $18,000, for a spouse and/or kids)

(f) Class 6.--Arrearage from court-ordered child support.

(g) Class 7.--Debts acquired after death by the continuation of the decedent's business...but only to the extent of the assets of that business.

(h) Class 8.--All other claims...


Exempt Property - $1,000 of personal property is exempt per the Florida Constitution. Additionally, Florida Statute §732.402 exempts up to $20,000 of household furniture, furnishings, and appliances in the decedent’s usual place of abode, also up to two vehicles (with some restrictions) and certain pre-paid college programs.


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TAX RESPONSIBILITIES

The personal representative is responsible for filing the decedent's final income tax return. The personal representative is also responsible for filing an income tax return for the estate in any year that the estate has at least $600 of income. If the "gross estate" is $5,000,000.00 or more (effective January 1, 2011), a federal estate tax return form 706 must be filed within nine months after decedents' date of death. For 2013, the law is in flux. If the estate is under that limit, then the personal representative will file an affidavit of no Florida estate tax due. If the decedent made any taxable transfers before death, the filing of a federal gift tax return may also be required. If the decedent or his estate is liable for Florida intangible or tangible personal property taxes, the personal representative is also responsible for the filing of these returns. I work closely with my clients to ensure that the proper returns are filed, and that all available exemptions are claimed.


Estate and Trust Income Tax Rates

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VERY SMALL ESTATES - Disposition of Personal Property Without Administration

When a decedent leaves personal property that is exempt under Florida law and does not exceed the funeral expenses and reasonable and necessary medical and hospital expenses for the last sixty days, the person entitled to the property may apply informally to the court and have the court transfer the property to the person entitled to it. This varies by County, but generally the assets must be below $6,000.00 to proceed under this authority. If the Estate qualifies for this approach, the Clerk of the Circuit Court will provide some measure of assistance to the heir.

The beneficiary may acquire legal ownership of motor vehicles by furnishing the Florida Department of Motor Vehicles with the required transfer forms.

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FEES

Both the personal representative and the attorney for the estate are entitled to reasonable fees for their services. The fees are not set by the Court, unless there is an objection by one of the heirs (or even an unpaid creditor) to the proposed fees. The Florida Probate Code contains provisions that state what fees are presumed reasonable, but the Court, if asked to do so, may increase or decrease those fees. The personal representative and attorney for the estate are also entitled to reimbursement for their expenses, and should keep a record of all expenses incurred. The Code provides for payment of about 3% of the assets to the P.R. for the P.R.'s services, and also provides that the following attorney fees are reasonable:

 

(a) $1500 for estates having a value of $40,000 or less.

(b) An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.

(c) An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.

(d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.

Please note: the value of the homestead is not included in the 3 percent figure; for instance, with a $100,000 estate plus a $200,000 homestead, the basic attorney fee is $3,500.00 (3% of the $100,000 and a flat fee of $500 for uncontested homestead proceedings).

In addition to the basic fee, there is a statutory list of other services which may include:

(a) Involvement in a will contest, will construction, a proceeding for determination of beneficiaries, a contested claim, elective share proceeding, apportionment of estate taxes, or any other adversarial proceeding or litigation by or against the estate.

(b) audit or collection of any taxes.

(c) Tax advice on postmortem tax planning, including, but not limited to, disclaimer, renunciation of fiduciary commission, alternate valuation date, allocation of administrative expenses between tax returns, ... deduction of last illness expenses, fiscal year planning, distribution planning, asset basis considerations, handling income or deductions in respect of a decedent, valuation discounts...

(d) Review of estate tax return and preparation or review of other tax returns required to be filed by the personal representative.

(f) Purchase, sale, lease, or encumbrance of real property by the personal representative or involvement in zoning, land use, environmental, or other similar matters.

(g) Legal advice regarding carrying on of decedent's business or conducting other commercial activity by the personal representative.

(h) Legal advice regarding claims for damage to the environment or related procedures.

(i) Legal advice regarding homestead status of real property or proceedings involving that status.

(j) Involvement in fiduciary, employee, or attorney compensation disputes.

(k) Proceedings involving ancillary administration of assets not subject to administration in this state.

More on attorney fees...
A substantial savings in Attorney fees for my clients revolves around the relatively low overhead associated with my law practice. At downtown law firms paying small fortunes for European artwork, Italian marble, panoramic views and sky high rent, it is a simple fact of economics that those costs must be passed on to the client.

Reduced fees for Summary Administration...
If the Decedent has been dead for at least 2 years, or if the assets consist mainly of the homestead, then it may be possible to proceed with Summary Administration, in which case the attorney fees are normally a flat fee. The attorney fees for Summary Administration are usually between $900.00 and $1200.00, while the Court costs range from a low of $235.00 to about $345.00, depending on the type of assets. If the only assets are, for example, a car worth $10,000.00, stock worth $2,000, and a home worth $150,000.00, Summary Administration may well be available. Summary Administration is appropriate when the matter is uncontested among the heirs, and when there are no significant creditor issues. It's okay for their to be creditors, unless there are unusual circumstances.

Call us to discuss fees and costs on our Toll Free Number: 877-591-6800

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CLOSING

After the personal representative has completed his or her duties, except for distribution of the assets, the personal representative must either file with the Court a Final Accounting and a Petition for Discharge or waivers from all the heirs. Click here for a sample checklist that is used by one of the County Probate Clerk’s to close an estate. Florida expects that it will take a year to a year and a half to administer an estate, but I find five months to be a more reasonable time, including the mandatory 90 day waiting period for claims of creditors. The Judge will enter an Order of Discharge. The Order of Discharge officially closes the estate, and relieves the personal representative of further responsibility.

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SUMMARY ADMINISTRATION

Summary Administration is a simplified probate proceeding which may be used when the value of the entire estate in Florida does not exceed $75,000 or the decedent has been dead for more than two years. Please note that the value of the homestead is in addition to the $75,000 cap, so there could be a sizeable estate handled with Summary Administration. In a Summary Administration, the estate must not be indebted or provisions for payment of debts must have been made, or if the assets are "exempt" then creditors are entitled to notice. If the Petition is signed by all interested parties, a hearing on the Petition is not normally needed. If a hearing is not required, the proceeding can be finalized and an Order of Summary Administration entered in a relatively short period of time, perhaps one to two weeks. A certified copy of the death certificate should accompany the Petition. The decedent's Will, if any, must also be filed with the Petition and, in the case of a will which is not self-proving, proved and admitted to probate. The funeral bill marked paid must also be filed.

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ELDER LAW AND MEDICAID

Medicaid Institutional Care Program (ICP), usually just called Medicaid, is a joint federal and state program that pays for the care of the elderly in a nursing facility. In Florida, the Medicaid program is administered by the Department of Children and Families (DCF).

Three Basic Criteria to Qualify for ICP Medicaid

The first two are not often a problem:

Level of Care: Applicant must need nursing home care. The level of care is verified by the Department of Elder Affairs (DOEA).

Income Cap: While there is an income cap, applicants with higher income may execute a Qualified Income Trust, resulting in eligibility.

Most Medicaid planning revolves around the third criteria, namely, asset limits:

If you need to discuss the asset limits, and all the items that aren't considered assets for purposes of eligibility, please contact us. In the meanwhile, be very cautious about any suggestions to transfer the home, or giving away assets, or hiding information from DCF (this is illegal, and people should know that the DCF computers are tied in to the IRS and other information sources). Assets can be preserved without the need for actual impoverishment, and without breaking the law.


Medicare's coverage of nursing home care is limited. Medicare covers up to 100 days of "skilled nursing care" per illness, but Medicare recipients are often discharged from a nursing home before they are ready.

In order for a nursing home stay to be covered by Medicare, you must enter a Medicare-approved "skilled nursing facility" or nursing home within 30 days of a hospital stay that lasted at least three days. The care in the nursing home must be for the same condition as the hospital stay. In addition, you must need "skilled care." This means a physician must order the treatment and the treatment must be provided daily by a registered nurse, physical therapist, or licensed practical nurse. Finally, Medicare only covers "acute" care as opposed to custodial care. This means it covers care only for people who are likely to recover from their conditions, not care for people who need ongoing help with performing everyday activities, such as bathing or dressing. If you need skilled nursing care to maintain your status (or to slow deterioration), then the care should be provided and is covered by Medicare. In addition, if there is a potential for adverse interactions among multiple treatments it may require that a skilled nurse monitor the patient's care and status. In such cases, Medicare should continue to provide coverage.

Once you are in a facility, Medicare will cover the cost of a semi-private room, meals, skilled nursing and rehabilitative services, and medically necessary supplies. Medicare covers 100 percent of the costs for the first 20 days. Beginning on day 21 of the nursing home stay, there is a co-payment ($137.50 a day in 2010). This copayment may be covered by a Medigap policy. After 100 days are up, Medicare stops paying (though it usually ends much earlier).

If you are in a nursing home and the nursing home believes that Medicare will no longer cover you, it must give you a written notice of non-coverage. The nursing home may discharge the following day. There are administrative appeals that can be filed to slow this process; a Quality Improvement Organization (QIO) and then an "Administrative Law Judge" (ALJ) or Hearings Examiner.

As a way to stay in the home, and thus avoid the need for Medicaid to cover a facility, consider a Reverse Mortgage:

Reverse Mortgages (.pdf)

Reverse Mortgages could help another way  - if there was already a mortgage on the homestead, but no funds to pay the mortgage once the Senior has been admitted to the nursing home; a Reverse Mortgage is a way to pay off the existing mortgage and defer payments on the new loan until the death of the Senior, but that's problematic because once the Senior no longer lives at the home, the Reverse Mortgage could be called due by the lender.

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PROBATE DISPUTES

The single most common situation that leads to disharmony is when a parent remarries. Usually it's the husband in this second marriage that dies first, and his children may be at odds with their step-mother. Our firm regularly handles this type of situation, and also other types of will and trust contests, including the defense and prosecution of claims that someone was paid too much money for their services. We also handle will and trust construction, and interpretation proceedings.

Someone who wishes to challenge the validity of a Will could argue that it was improperly executed. To be properly executed, it must be signed at the end by the Testator (or by another person at the testator's direction) and the testator must sign the Will in the presence of two witnesses, and that the witnesses sign the Will in the presence of each other. Rarely can it be proved that the Will was executed improperly, because the witnesses usually collaborate on their stories.

Remember that a Florida resident who has testamentary capacity and does not have a spouse or minor child may leave his or her estate to whomever he or she chooses. Nevertheless, the more common attacks are:

Lack of Testamentary Capacity - A Will contest that is based on the testator's lack of capacity must prove that the testator did not understand the amount and nature of his property, did not understand who would ordinarily receive such property if there was no will, and did not understand how this Will disposes of such property. Capacity has been summarized as being able to understand in a general way the nature and extent of one’s assets and the natural objects of one’s affection (family). Lack of Capacity is usually proven by medical records and expert testimony, because the witnesses almost always testify the Testator had capacity.

Undue Influence - this argument admits the testator had sufficient capacity to make a will, but challenges whether the testator made the Will freely. An undue influence petition argues that the decedent made his Will after being coerced by another person. For example, a care giver or neighbor may pressure an elderly person to leave his assets to the care giver while excluding children or other relatives who have had a long history of active participation in the elder’s life. The Courts look at a number of factors including:

(a) presence of the beneficiary at the execution of the will;

(b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;

(c) recommendation by the beneficiary of an attorney to draw the will;

(d) knowledge of the contents of the will by the beneficiary prior to execution;

(e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;

(f) securing of witnesses to the will by the beneficiary;

(g) safekeeping of the will by the beneficiary subsequent to execution.

Even if items (a)-(g) are all present, the will could still be valid, so long as the Court finds that there was a legitimate reason for (a)-(g) to have occurred.

Again, most cases allege all three claims, but as the case develops, the focus is usually on undue influence. Undue influence against a spouse, unless there is physical abuse, is a difficult claim to prove.

Marriage fraud: Florida Statute §732.805 provides that a surviving spouse found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to certain rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse, unless the marriage is subsequently ratified. This is a legislative attempt to give the heirs of the Decedent the legal right to pursue litigation in a circumstance where it is alleged the Decedent was the victim of fraud or other outrageous conduct by a "spouse." The principal target would be a "deathbed" marriage, which historically, heirs of the Decedent did not have the legal right to contest.



New Florida Law:
Pay on Death accounts - After Divorce:

F.S. 732.703, effective July 1, 2012, cancels a designation of an ex-spouse under certain circumstances. It applies to the following beneficiary-designated non-probate assets:

  • a life insurance policy, qualified annuity, or other similar tax-deferred contract held within an employee benefit plan;
  • an employee benefit plan;
  • an individual retirement account;
  • a payable-on-death account;
  • a security or other account registered in a transfer-on-death form; and
  • a life insurance policy, annuity or other similar contract that is not held within an employee benefit plan or tax-qualified retirement account.

However, the statute is lengthy and provides numerous exceptions.
 
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LINKS

State of Florida's web site where they list property that's been abandoned and is waiting to be claimed by an heir. This property could be bank accounts, refunded utility deposits, uncashed insurance checks, and so forth. Florida Treasure Hunt

Search for Savings Bonds - Treasury Direct

Find a lost 401(k) plan - Site for registering missing participants

Search for Life Insurance Policy - site to start your search for a missing policy

Florida Department of Corrections - Offender Search - To locate current prisoners and those on Felony probation

Florida Statewide RecordsSearch for Real Property and other records throughout Florida

Florida Clerk of the Circuit Court - Link to all Florida Clerks that maintain a website

Florida Association of Property Appraisers - Link to all official Florida Property Appraisers statewide

Probate Statutes (When the Browser window opens, scroll down and then click on Title XLII "Estates and Trusts") 

Florida Probate Rules - 2014

Direct Marketing Association - "Deceased Do Not Contact Registration" Remove names of deceased individuals from commercial marketing lists

If links do not function properly, it may be due to browser incompatibility. Try upgrading to a newer version.

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EXPERIENCE OF ATTORNEY WINER

I have been practicing law since 1985. Click here for a Certificate of Good Standing. The majority of my practice involves issues surrounding the elderly. I am a member of both the "Elder Law" section of the Florida Bar and the " Real Property, Probate, and Trust Law" Section of the Florida Bar. I attend seminars devoted to issues affecting inheritances. Click here for a partial list of attended seminars. In addition to the State of Florida, I am also admitted to the bar of the following Courts: 

  • U.S. District Court, Middle District of Florida 1986
  • U.S. Court of Appeals, Eleventh Circuit 1986
  • U.S. Tax Court 1986
  • U.S. Claims Court 1987
  • U.S. Court of Military Appeals 1987
  • U.S. Supreme Court 1991
  • U.S. Court of International Trade 2001
Education
University of Maryland, College Park, B.A. Speech Communications 1982
University of Oregon, Eugene, Oregon, J.D. 1985 


Proctor for Florida Board of Bar Examiners 2009

 

Judge for American Collegiate Moot Court Association 2009
Judge for Negotiation Competition, National Finals, American Bar Association Law Student Division 2010
Judge for Florida Justice Association Earle Zehmer Mock Trial Competition 2013

Video Greeting (9 meg file)

Assisting me in my Saint Petersburg office is Terry. Assisting me in my Tampa office is Lori, who first began working for me in 1999.




Letters of Recommendation

From Thomas Jerry Floyd

From Oak Grove United Methodist Church

From All Saints Luthern Church

From Reverend Lawrence Valdez

From Reverend Foster M. Garvin

From Dexter LaGrand

From Shirley A. Rodriguez

From Nancy E. Schuble

From J.O. Delotto & Sons, Inc.

From John A. Gill

From Charles M. Walker

From Augustus J. Rodrigues

From Blount Curry & Roel Funeral Homes & Cemeteries

From Lorraine and Bob Koryus

From Bartlett Land Trust


From Donna Wise - re: Summary Administration
 

From Adelaide Gmutza - re: Formal Administration

From Jeffrey Young re: Ancillary Formal Administration

Jack and Andrea Hando (Formal Administration, intestate)

From Ben Hackett (Summary Administration & Homestead) 2006

From Maria Walton (Formal Administration) 2007

From Robert Walker (Elder Law / Medicaid) 2007

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LOCATION


My main office is in Saint Petersburg, home of the Tampa Bay Rays. Complimentary off street parking is available. Exit 23A from Interstate 275; conveniently located to Sarasota and Clearwater.



My Tampa office is near the intersection of West Waters Avenue and Armenia Avenue, and is conveniently located to Interstate 275. The office is an hour and a half west of Orlando, and an hour southeast of New Port Richey and Brookesville. I have handled Estate matters throughout many Florida Counties. Click Here to see a Google map of our Tampa office.

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