Common Probate Questions

Common Probate Questions

Common Probate Questions

Am i required to pay my deceased father’s bills?

Debts of a deceased person are typically only payable to the extent that the estate has money to pay them. Part of the probate process is to notify creditors, at which time they have the opportunity to file a claim against the estate for payment. The family is not required to pay debts that exceed the value of the assets of the estate, though there may be an exception if there is something valuable in the estate that the heirs do not want sold to pay the debts (i.e. family heirlooms or mortgaged real estate).

My mother passed away a few years ago and there is still money in an account in her name. How do I get it?

Unless the account had another owner or a death beneficiary, typically this situation requires probate. If it has been more than two years and the estate is valued at less than $75,000, there is an abbreviated process with the court called summary administration. Summary Administration, however, typically requires all legal heirs to be on board and join together in the petition. If someone is not in agreement about the shares, or one of the heirs has died since your mother’s death, formal administration may be required.

If I sign a Waiver of Priority, Consent to Appointment of Personal Representative, do I give up my rights?

Often, an attorney representing the proposed Personal Representative (aka Executor) may ask other family members or beneficiaries to sign a Waiver of Priority, Consent to Appointment of Personal Representative, and Waiver of Notice and Bond, or something similar. This is a relatively standard document meant to speed up proceedings and keep them less expensive when there is a consensus within the family as to who should serve as the Personal Representative. No rights are permanently given up and this does not affect the inheritance received by the beneficiary.

If the personal rep receives medical bills after the Notice to Creditor has ended does he/she still have to pay the bills from the estate account?

This really hinges on whether the bills were reasonably ascertainable prior to the expiration of the claim period. If the Personal Representative should have reasonably known about the bills, the estate is likely liable.

I filed a petition for probate and it was denied. The court sent back a form stating that it not allow the only assest in a Summary Administration to be a homestead property.

You will need to file a Petition to Determine Homestead Property, because the regular probate proceedings cannot transfer homestead property. The Judge will grant the Homestead Petition so long as it is going to a spouse, children, or grandchildren, parents, siblings, nieces and nephews. This is all due to some peculiarities with Florida’s homestead laws.

I’m the executor of an estate in Florida. Will the courts in Florida accept reimbursements for mileage? If so, how much per mile should I be figuring?

Typically you would use the IRS Standard Mileage Rates for business, which change yearly. See Below:

Beginning on Jan. 1, 2017, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

  • 53.5 cents per mile for business miles driven, down from 54 cents for 2016
  • 17 cents per mile driven for medical or moving purposes, down from 19 cents for 2016
  • 14 cents per mile driven in service of charitable organizations

Keep in mind that if you are reimbursed, you can’t also deduct the mileage on your taxes.

My friend wants to give me his house upon his death and signed a letter saying so. Is this legal?

Without a properly executed deed or will, you cannot transfer your property at death to a non-relative. Even if your friend executes a will giving you his homestead,, it may not be effective if he has minor children or a spouse. Your friend should see an attorney regarding how he wishes his property to be handled at his death.

When my mom died she owned house that was “underwater.” The family didn’t want it and walked

Away. Now the bank suing us even though she was the only owner. How can they do that when none of our names was on the deed?

The bank is suing to foreclose on unpaid mortgage and likely included your names since the property is potentially homestead and would legally have passed to her children absent any other provisions in your mother’s will. That being said, the bank will only collect from the proceeds of the foreclosure to the extent that there was any equity over and above what might have been owed on the mortgage. Rest assured that you and your siblings cannot be held personally liable for the debt and it should not affect your credit.

My mom died without a will. How do my brother and I get title to her home? Will the government take it?

All is not lost if someone dies without a will! The government will not get the property, but you will need to file open a probate estate. The state of Florida has laws that if there is no will, all property will be divided up equally amongst her surviving heirs. This will insure that things are divided equally for all of the children unless a will is produced which provides for some other distribution of the property. If your mother died more than 2 years ago, a quicker form of probate, summary administration, is available.

Is probate legally required?

There is no requirement to probate an estate. Often there are certain types of property (real estate, bank or investment accounts without a joint owner or beneficiary, etc.) that may require probate before title can be transferred or distributions can be made. If you are unable to gain control of financial accounts or require legal title to real-estate or vehicles, you may need to probate the estate.

Am i responsible for my estranged husband’s debts when he dies?

If you have not voluntarily taken on your estranged husband’s medical debts, there should be no liability on your part. Depending on the nature of his assets and the distribution of his estate in his will, if he has a will, it may still be necessary for you and any minor children to probate his estate.

If your husband owns a home or certain types of retirement accounts, these may still be exempt from his creditors, medical or otherwise. This means that there may still be an inheritance despite the bills that he incurred.

My father died and he gave everything to my brother. What can I do?

If fraud, threats, or abuse influenced the drafting and signing of the will, there may be reason to contest the will as invalid, otherwise there are no guarantees of an inheritance. The distribution of a decedent’s assets are controlled by their valid will, if they leave one, or by the intestacy (death without a will) laws of the State of Florida. There are no laws to stop an individual from leaving their property to whomever they wish upon their death, with the exception of the surviving spouse and children under 18.

What happens if I am an executor of an estate and I paid out to beneficiaries before debts were paid?

To the extent that creditors’ timely filed claims were not paid, the executor can be held personally liable for the estate’s debt up to the value of the non-exempt assets. Depending on the claims filed in the estate, you could be personally liable for the estate’s debt up to the amount distributed to the heirs prematurely.

My grandfather died three years ago with a lot of debt. We didn’t know how to deal with it, so we have waited. What should we do?

After two years, no claim (including Medicaid) can be made against the assets of estate. All of that debt vanishes with regard to the creditor’s legal ability to collect. As such, most courts do not even require notification of Dept of Health in Florida, just as they do not require publication of Notice to Creditors. Section 733.710 Florida Statutes (2017) provides in pertinent part:

733.710 Limitations on claims against estates. —

(1) Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.

My Cousin has my dead grandfather’s will and refuses to show it to any of us. How can we make him?

Per Florida Statutes 732.901, anyone in possession of the deceased person’s will must present it to the court within 10 days after learning of the testator’s death. In practice, wills are rarely filed this quickly, but, your cousin holding the document refuses to file it, a petition may be filed in court to force the production of the will. If the petitioner is successful, they can receive costs, damages and attorney’s fees from the person withholding the will.