PROBATE AND ESTATE PLANNING
WHAT DOES A PROBATE LAWYER DO FOR YOU?
Florida is a state that requires several types of property to go through probate regardless of whether there is a Will (“testate”) or no Will (“intestate”) after one passes away. Many people believe that a Will is sufficient to “automatically” transfer property to their loved ones, but that is not the case in Florida. Florida has created a system in which a person’s property, after they have passed (the “decedent”), has to go through. This system is called probate. The system was created to protect creditors (individuals or entities that a decedent may have owed money to before they passed) and to protect other loved ones. For this reason, the courts require that forms be submitted identifying all potential creditors and family members who could potentially have an interest in the property that is being distributed. The court will appoint a “personal representative” to assist in the caring for and distribution of the estate. The personal representative is often identified in a Will or is determined by statute. The total property left by your loved one is considered their “estate” (i.e. real estate + stocks + liquid cash). The job of your probate lawyer is to efficiently assist and guide the personal representative, or other persons entitled to proceeds from the estate, by submitting the necessary documents to the court, to assist in answering questions that the court may have regarding the documentation provided, to defend the estate from lawsuits filed against it, to defend the estate from any creditors who have no rights to the estate, to assist in making sure that the estate is properly valued which could have potential tax consequences, and to assist in resolving any disputes between heirs as to who is entitled to receive what property or assets. The probate process is a complex process which can be unnecessarily delayed, result in you losing entitlement to property or assets, or result in personal liability against the personal representative if the estate is not properly administered. For that reason, it is advisable to seek legal counsel whenever you go through probate. Salvation Legal is here to assist you through this complex process. Please contact us to discuss your probate needs.
HOW MUCH DOES A PROBATE LAWYER COST IN FLORIDA?
The cost for probate varies across location and is dependent on the value and size of the estate, the amount of people the attorney is representing, and whether there is going to be litigation to determine which heirs get what property. Probate in a way is a form of litigation but if all of the decedent’s heirs are in agreement with the way the property will be distributed, the process can be done without having to go in front of a Judge to present evidence or make arguments. That is not the case if there is a beneficiary that is arguing, for example, that the decedent’s Will was fraudulent or executed under duress. In these circumstances, an attorney will need to go in front of a Judge to explain why the Will should or should not be accepted by the Court. The additional costs involved for probate litigation can significantly raise the cost of representation. For this reason, many attorneys provide representation at an hourly rate. Hourly rates for an attorney in a probate case can range anywhere from $250 per hour to $400 per hour and in some circumstances more. Florida law though does provide guidelines for reasonableness of how much an attorney may charge for their services in a probate matter. This is specifically provided by Florida Statute Section 733.6171 which provides "guidelines" depending on the value of the estate. The value of the estate is the total value of all the assets that are to go through probate combined (i.e. real estate + stocks + liquid cash = value of estate). As the value of the estate increases, so does the amount that the attorney can charge. The statute is not a cap or minimum though and an attorney and client can enter into an agreement that is below or exceeds these guidelines. The Florida courts have now required that the following disclosure be provided to all persons hiring an attorney to represent them in probate:
Mandatory Disclosures Regarding Attorney’s Fees in Probate Administration
1. There is not a mandatory statutory attorney fee for estate/trust administration.
2. The attorney fee is not required to be based on the size of the estate/trust, and the presumed reasonable fee [based upon the statutory schedule] may not be appropriate in all estate/trust administrations.
3. The fee is subject to negotiation between the personal representative/trustee and the attorney.
4. The selection of the attorney is made at the discretion of the personal representative/trustee, who is not required to select the attorney who prepared the will/trust.
5. The personal representative/trustee shall be entitled to a summary of ordinary and extraordinary services rendered for the fees agreed upon at the conclusion of the representation. The summary shall be provided by counsel and shall consist of the total hours devoted to the representation or a detailed summary of the services performed during the representation.
To find out the cost for Salvation Legal to represent you in your probate matter, contact us to get a free quote.
Below we have provided a link to the Statute regulating amounts attorneys in Florida can charge for services in a probate matter.
SHOULD I HIRE A PROBATE ATTORNEY?
Hiring a probate attorney is a personal preference, but just like all areas of law in Florida, there are many complex issues which could harm you and the other persons who are heirs to the decedent. Additionally, some probate judges prefer or even require that a personal representative hire an attorney to represent them in a formal administration (see article regarding the difference between formal and summary administration). The Florida Bar states:
"A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys." See https://www.floridabar.org/public/consumer/pamphlet026/.
Probate in Florida is a regulated process which requires specific steps to be completed before the Court will allow you and your family to take possession of property owned by your loved one that recently passed away. Additionally, there could be serious tax consequences which could affect the amount of taxes taken out by the federal government. Currently, the state of Florida does not impose estate taxes, but the IRS does. If the value of your estate is over $11.7 million dollars (double that for married couples), then the estate could be taxed. The job of your attorney at that point would be to make sure the Court properly values the estate so that the estate is not unnecessarily taxed. For example, in a recent ruling in the estate of Michael Jackson, Mr. Jackson’s family probate attorney was able to show that the value of the estate was not the $482 million, as initially estimated, but instead $111 million. This significantly reduced the amount of taxes that were to be assessed by the IRS. Another factor to take into consideration is the amount of time the administration of the estate can take. Salvation Legal has the experience you require to make sure that all the documents needed by the Court are provided as quickly as possible so that the estate can be discharged (closed) as quickly as possible. Delays in providing the Court with the documentation and information necessary to administer the estate could delay the matter for a year or longer. Finally, if the estate is going to be contested in any way, you should make sure that you retain a lawyer to represent you as it is likely that the other party will hire an attorney. This can happen if the estate is sued or if a relative believes that they are entitled to more than a Will bequeaths. This process requires presenting arguments and providing evidence to the Judge and to make arguments on your behalf. To make sure that your interest and the interest of those you are assisting as a personal representative of the estate, you should make sure to seek the advice and guidance of a lawyer.
SUMMARY PROBATE ADMINISTRATION VS. FORMAL PROBATE ADMINISTRATION
The Florida Legislature has created multiple avenues that a beneficiary of an estate can use to receive benefits from a loved one who has passed. Summary and Formal Probate Administration happen to be the most common and are dependent on the size and value of the estate and how much time has passed since the person has been deceased. Florida Statute Chapter 735 governs small estates and says that a summary administration proceeding can be used to administer them. A small estate is defined as an estate that does not exceed $75,000.00 in value or where the decedent passed away more than two (2) years ago. If you loved one's estate falls under one or both of these requirements, you can seek a summary administration of the estate. The benefit of a summary probate administration is that the process is simpler, faster, and most of the forms needed are often provided by the courts. Formal administration, on the other hand, are for estates with a value $76,000.00 or greater and where the person passed away less than 2 year ago. This process involves additional filings and is also used for more complex issues such as disputes over the validity of a Will or for the sale of real property. It is recommended that a Personal Representative use an attorney to assist with the Formal Probate administration process and many courts even require a Personal Representative to have any attorney. If you want to learn more about the differences and or unsure which type of probate you need to file, contact us today.