Estate, Probate, Wills & Trusts
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When preparing for the future of your estate, it is important that there be a plan of action that gives you the confidence in knowing that your estate will be handled in the way that you truly desire. James Brown Law in West Palm Beach will assist you with the precise execution of the transferring of your estate to your heirs.
Keeping the estate taxes at a minimum, we work with you to develop a plan that reserves as much of the estate for those you care to leave it to. We are committed to delivering a plan that assists you in the transferring of your estate with personal attention and care. James Brown Law in West Palm Beach is eager to help you complete your estate planning, including assistance with topics such as:
Probate refers to the handling of the estate of a deceased person. There are two main types of probate: Summary administration and Full administration. Summary administration is a simple and less expensive manner to probate an estate so long as the estate is valued at $75,000.00 or less. Both versions begin with a petition for administration and end with an order closing the estate and distributing the assets. Full administration is more complicated and requires many additional steps like publishing a notice to creditors and notice of administration. The estate is probated pursuant to the terms of a will, if one exits, or pursuant to the statute on intestate succession. All estates are probated according to the rules of probate and statute.
Probate can be avoided entirely if the deceased created a living trust. Probate can also be avoided by establishing beneficiaries with financial institutions and holding real property as joint tenants with rights of survivorship.
We understand the difficulty in navigating probate in the state of Florida. Our attorneys will provide personal advisement to representatives and beneficiaries during the proceedings, helping to avoid disputes within the probate process. Easing the stress and confusion of probate is our main focus in guiding you through every step. We are equipped to address situations that may arise within the probate process such as:
Guardianships are most often used when someone is not competent to handle their own affairs. There are two types of guardianships, one for the person and one for the property of that person. Most frequently guardianships are of the property and give the guardian complete control of the ward’s property and finances. A guardianship of the person usually occurs when a person is a minor but it also can be established where it is determined that the person is no longer able to care for themselves. Both begin with a petition for guardianship by an interested person.
People often ask estate planning attorneys why they should make a will if they are not “wealthy.” While each person’s situation is unique, everyone should have a will prepared to address important end-of-life decisions. This often overlooked, crucial aspect of estate planning insures your expectations with regards to your estate, guardianship over your minor children, and medical wishes are finalized. The attorneys at James Brown Law will direct you in understanding and protecting your estate with a will. We can assist you with:
Frequently Asked Questions
In Florida, the law stipulates that when spouses jointly own property with rights of survivorship or as tenants by entities, the surviving spouse will automatically inherit that property. This provision exists because jointly owned assets are not subject to probate administration.
Consequently, the transfer of ownership should occur seamlessly and automatically upon the death of one spouse. Examples of jointly owned assets that a spouse can automatically inherit in Florida include joint bank accounts, jointly owned real estate, joint investment accounts, and jointly owned vehicles.
Also, Florida’s intestate succession laws decree that if a person dies without a will and is survived by a spouse but no lineal descendants (children, grandchildren, etc.), the surviving spouse is generally entitled to inherit the entire estate.
Under Florida laws, a valid will can override certain spousal inheritance rights. While a spouse is entitled to the automatic inheritance of certain jointly owned assets, the distribution of other assets can be governed by the deceased person’s will.
However, it’s important to note that Florida has spousal protections in place. Even if a will attempts to disinherit a spouse, the surviving spouse may be entitled to claim a portion of the deceased spouse’s estate.
This is known as the “elective share” or “spousal share” and is intended to prevent a complete disinheritance of a spouse. Per this legal provision, a surviving spouse may claim 30% of the elective estate, which includes both probate and non-probate assets.
The cost of creating a will in Florida can vary widely depending on the complexity of your estate, the attorney you choose, and any additional services or considerations involved.
Here are some approximate cost ranges:
- A basic will drafted by an attorney: The fees for a basic will can range from around $300 to $1,000 or more, depending on the attorney’s experience, location, and other factors.
- Complex estate planning: If you have a more complex estate with significant assets, trusts, business interests, or tax planning needs, the cost can range from $1,500 to several thousand dollars or more. Complex estate planning may involve additional services and consultations to address specific requirements.
If you want to learn more about the cost of planning your estate, please contact us.
Placing your house in a trust has potential disadvantages, including complexity and cost, the loss of direct control, limited creditor protection, and considerations related to mortgages and insurance. Its complexity stems from the fact that you must pay significant attention to the trust as the years go by, and be careful to make changes to the trust as often as you make changes to your house, or the real property included in the trust.
Furthermore, having your house in a trust does not protect it fully from creditors. Finally, having property in a trust can lead to additional expenses after your passing, as the trust must file income tax returns and value assets.
Assets that should not be in a trust include the following:
- Retirement accounts: Qualified retirement accounts, such as 401(k)s, IRAs, and pension plans, should generally not be placed directly into a trust. These accounts have specific beneficiary designations that determine who receives the assets upon the account holder’s death. Naming beneficiaries directly on the retirement accounts ensures a smooth transfer of assets outside of the probate process.
- Life insurance policies: Life insurance policies typically have designated beneficiaries, and the proceeds from the policy are distributed directly to the named beneficiaries upon the policyholder’s death.
- Motor vehicles: Vehicles are typically not placed in a trust. Instead, they are transferred through the appropriate vehicle registration process, such as transferring the title of the vehicle to the designated beneficiary or heirs.
- Personal belongings and household items: Tangible personal property, such as clothing, furniture, jewelry, and artwork, are typically distributed through personal bequests in a will or handled outside of the probate process.
A non-probate asset, also known as a non-probate property, is an asset that does not go through the probate process upon the owner’s death. Instead, these assets pass directly to the designated beneficiaries or co-owners outside of probate. By having non-probate assets, individuals can ensure that certain assets pass efficiently to their intended beneficiaries without the delays and costs associated with probate.
However, please note that it’s important to review and update beneficiary designations regularly to reflect any changes in personal circumstances or estate planning goals. If you would like to learn more about this or get professional help with your estate planning, please contact James Brown Law today.
Non-probate assets typically include:
- Assets with designated beneficiaries: Certain assets, such as life insurance policies, retirement accounts (401(k)s, IRAs), and payable-on-death (POD) or transfer-on-death (TOD) accounts, allow the owner to name specific beneficiaries. Upon the owner’s death, these assets are transferred directly to the designated beneficiaries without the need for probate.
- Jointly owned assets: Assets owned jointly with rights of survivorship, such as joint bank accounts, joint real estate, or joint brokerage accounts, pass automatically to the surviving joint owner(s) upon the owner’s death. The asset ownership transfers outside of probate.
- Trust assets: Assets held within a revocable living trust or an irrevocable trust are considered non-probate assets. Upon the owner’s death, these assets are distributed according to the terms of the trust, bypassing probate.
- Gifts made during the owner’s lifetime: Assets that were gifted outright to beneficiaries during the owner’s lifetime are not subject to probate.
Florida probate law provides a threshold for probate based on an estate’s assets and the specific circumstances surrounding the estate. An estate would go through formal administration if the value of its properties, excluding non-probate assets, is worth more than $75,000. Formal administration means just what it sounds like. It’s a more stringent process of administering probate.
If the estate is worth less than $75,000 and the decedent has been dead for more than two years, then it would go through summary administration. Summary administration is faster than formal administration.
If the value of the estate is less than $20,000, then it would go through small estate proceedings. Note that this only applies to personal property, not real estate.
Note that even if the value of the estate falls below the threshold for probate, some assets may still require legal action to transfer title to the beneficiaries. Please contact us at James Brown Law to help you determine the appropriate probate procedures based on your situation.
To probate a will in Palm Beach County, Florida, you will need to follow these general steps:
- Gather necessary documents, such as the original will and the death certificate of the deceased, and information about the deceased’s assets, debts, and beneficiaries.
- File the appropriate probate documents with the Palm Beach County Probate Court. You can file the original will in person at any of the courthouse locations or by mail, to the attention of the Florida probate division at P.O. Box 4667, West Palm Beach, FL 33402.
You must include a certified copy of the death certificate, or other document that will confirm the date of death when filing the will.
- Notify interested parties, including beneficiaries and creditors, about the probate proceedings.
- Prepare an inventory of the deceased’s assets and have them appraised if necessary, as this helps determine the value of the estate and assists in the distribution process.
- Pay debts and taxes
- Distribute the remaining assets to beneficiaries according to the terms of the will.
- Prepare a final accounting that documents all financial transactions related to the estate.
The cost of going through probate in Florida can vary depending on several factors, including the complexity of the estate, the size of the estate, and the fees charged by attorneys and other professionals involved in the process. Here are some potential costs associated with probate in Florida:
- Court fees associated with initiating the probate process and filing various documents with the court. These fees can vary depending on the county but typically range from a few hundred dollars to a few thousand dollars.
- Attorney fees, which are subject to court approval in Florida.
- Personal representative fees, depending on the complexity of the estate and the time and effort involved.
- Appraisal fees: If the estate includes assets that require professional appraisal, such as real estate or valuable personal property, there may be appraisal fees involved.
- Other professional fees from professionals, such as accountants, tax advisors, or financial advisors. Their fees will vary based on the scope of their services.
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