Legal Services: Probate, Guardianship, Estate Planning, Planning for Incapacity, Living Will, Trust, Health Care Directive, Durable Power of Attorney, Last Will and Testament
Whether purchasing a life insurance plan, opening a checking or savings account, or signing up for an employee retirement plan, the most important thing you will be asked to do, is to designate one or more beneficiaries, to whom the asset will go upon your death. It is a task that we complete by signing a form, and often forget about. Typically it is the spouse that is named as the primary beneficiary. However, what happens if in the meantime you get divorced, and die without changing your beneficiary designation? Sect. 732.703 of our Florida Statutes provides the answer. If there has been a dissolution of marriage, and the asset is not subject to a marital settlement agreement, then the asset passes, as if the divorced spouse had predeceased the asset holder. It is still good practice to update beneficiary designations when such a life change occurs, however.
Does the Personal Representative of the Estate have to
pay the bills of the decedent which were owed prior to
The answer to this question is not simple. The general answer is yes, but it is qualified.
The individuals and businesses in which the decedent owed money, are referred to as “creditors” in Florida’s probate code. Typical creditors are credit card companies, doctors, hospitals, and lenders. They are entitled to be paid from available probate assets; which begs another question.
What are probate assets? Probate assets are any property that the decedent held in his or her own name individually. A joint bank account held with a spouse is not a probate asset. The spouse becomes the full owner of the money in the joint account upon death. However, a bank account held in the decedent’s name only, which does not have a “payable on death” designation is a probate asset.
The other qualification is whether the creditor files a statement of claim in the court where the probate has been opened, within thirty days of when they receive notice that a probate has been open. Only those creditors filing a timely claim, are entitled to be paid. The job of the Personal Representative is to obtain copies of bills or invoices showing the address of the creditors so that their attorney can notify them. The document which provides the notification is called “Notice to Creditors”.
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What happens when there is no will?
When a person dies without a Will, they are said to have “died intestate”. The laws that govern the disposition of a probate estate when there is no Will is found in Chapter 732 Fl. Statutes. The spouse’s share of an intestate estate is set forth in Sect. 732.102 Fl. Stat. If the decedent was married at death, the spouse’s share depends on whether either spouse had children from another marriage. If there are no children from the marriage or all the children are a product of the marriage, then the spouse inherits the entire estate. On the other hand, if the decedent had children or surviving spouse had children outside the marriage, then the surviving spouse’s share of the estate is half of the probate estate. (50%).
If the decedent was unmarried then, or the spouse does not receive the entire probate estate then the property descends to other heirs according to Fl. Stat. 732.103, first to the descendents of the decedent. “Descendant” is defined as a person in any generational level down the line, and includes children, grandchildren and great grandchildren. The term is also known as “lineal descendant” or “issue”.
If there are no descendants, then the probate assets pass to the decedent’s mother and father equally, or to the survivor of them.
If the decedent had no descendants or parents, then the probate property passes to his or her siblings and descendants of deceased siblings.
The statute further deals with how the probate assets will be distributed in there are no descendants, parents, siblings or descendants of siblings, though this situation rarely occurs.
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