Florida Probate Attorney

The term “interested person” comes up often in Florida probate.  Interested persons have greater rights than others when it comes to Florida probate.  Here are a few examples:

• Interested persons have a right to request information regarding the inventory and accounting of a Florida estate, information that is kept confidential from the general public.
• Only interested persons have standing (legally recognizable rights to be involved) in Florida probate matters.  Interested persons can object to various pleadings or otherwise intervene in the Florida probate proceeding.
• Interested persons can object to the qualifications of the Florida personal representative, the validity of the will, or the venue/jurisdiction of the court handling the Florida probate.

Although the concept of an “interested person” is a characteristic of the laws of most states, not all states define the term.  Florida Statutes 731.201(23) provides the following definition:

“Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.

The statute goes on to specifically include various categories of interested persons.  For example, in any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate is considered an interested person.

Trustees of some revocable trusts are also classified as interested parties in Florida probate proceedings.  Specifically, Florida Statutes 731.201(23) and 733.707 provide that the trustee of the following type of trust will be deemed to be an interested person:

Any portion of a trust with respect to which a decedent who is the grantor has at the decedent’s death a right of revocation …, either alone or in conjunction with any other person.

One category is statutorily excluded from the definition of “interested person:” The term does not include a beneficiary who has received complete distribution.  In other words, if a beneficiary has already received a complete distribution of his or her share of the Florida probate estate, that beneficiary is no longer considered to be an “interested person” for purposes of the Florida probate proceeding.

In spite of these specific categories, Florida law recognizes that the term necessarily involves some ambiguity.  Florida Statutes 731.201(23) provides:

The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

This means that the categories listed in the statute are not exclusive.  Other types of interested persons can pop up.  For example, a creditor of an insolvent estate “may reasonably be expected to be affected by the outcome of the particular proceeding involved” and may be considered an interested person even though not specifically named in the statutory definition.

Notifying creditors of the estate is one of the most important duties of Florida personal representatives.  Since resolution of creditors’ claims is one of the fundamental purposes of probate, it is no surprise that Florida personal representatives are required to do what they can to notify creditors that the estate has been opened for probate.

Florida Statutes Section 733.2121 requires the personal representative to “promptly publish a notice to creditors.”  The statute further requires Florida personal representatives to do their best to locate any known creditors of the estate:

The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors.

But what if the Florida personal representative is also a creditor of the estate?  This could happen, for example, if the personal representative is a family member that lent the decedent money prior to his or her death.  In this case, the person serving as personal representative would be wearing two hats: one of a personal representative and one of a creditor of the estate.

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The January 1, 2011, issue of the Florida Bar News reports that we are yet another step closer to being able to e-file Florida probate cases.  In fact, we aren’t too many steps away from being required to e-file Florida probate matters. 

The Florida E-Filing Authority has registered an official online address—www.myfloridacourtaccess.com—for the new e-filing portal.  This new technology will allow Florida probate lawyers to file cases electronically from anywhere they can access the Internet.

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The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, P.L. 111-312 was signed into law by President Obama on December 17, 2010 (2010 Tax Relief Act).  The 2010 Tax Relief Act made sweeping (but possibly temporary) changes to the Federal gift, estate, generation-skipping transfer tax laws.

The 2010 Tax Relief Act was enacted in a flurry of partisan controversy as Congress scrambled to agree on a relief package before the end of 2010.  Had Congress not acted, the estate tax would have been reinstated in 2011 with a maximum exclusion amount of $1 million and tax rates of up to 55 percent.  This meant that everyone who had more than $1 million in assets stood to lose up to have of it to the IRS at death.  Neither side of the aisle was happy with this prospect, but agreeing on an alternative was a challenge.

Congress was finally able to reach a compromise, albeit one that is temporary.  Unless Congress acts before the end of 2012, the 2010 Tax Relief Act will expire at the end of that year.  But for the next two years, 2010 Tax Relief Act should provide at least some stability to the gift and estate tax planning environment.

Since the 2010 Tax Relief Act became law, the discussion has tended to focus on the ways in which the new law will affect estate planning in the near future.  Under the new gift estate tax provisions, the estate tax rate is set at 35 percent with a $5 million exemption for individuals.  The same exemption is available for gifts.  The relief will be in place for 2 years.  These and other changes will be very important from an estate planning perspective.

But there are a number of changes that are important from a probate and estate administration standpoint.  Utilization of some of the gift and estate tax benefits of the new law require action on the part of personal representatives.  Probate attorneys and personal representatives must look out for these opportunities or risk a lawsuit for failure to do so.

Over the next few days, I plan to take a look at the responsibilities that the new law will place on personal representatives and their probate attorneys.  As we’ll see, failure to take these new responsibilities into account could have disastrous financial consequences.

The Florida Supreme Court has put new Florida Probate Rules out for comment. These revisions, which should not be controversial, are being proposed to coordinate the Florida probate rules with recent amendments to the Florida probate statutes. Here’s a summary of the proposed changes:

1. RULE 5.201. NOTICE OF PETITION FOR ADMINISTRATION. Under this amendment, Florida personal representatives must now include a copy of the will offered for probate with any notice that the estate is being opened. In other words, if the personal representative is required to or otherwise does serve anyone with notice that the estate is being opened for probate, the personal representative must provide that person with a copy of the will.
   1. Note: This requirement used to be included in the Florida Statutes, but was removed because it was thought to be a procedural requirement. The addition to the Florida probate rules is just to put this information in the right place.
2. RULE 5.260. CAVEAT; PROCEEDINGS. This rule has been amended to mesh with recent legislative changes to Florida probate law. It allows anyone other than a creditor to file a caveat with the court at any time, either before or after the decedent’s death. But a creditor can only file a caveat after the decedent’s death. It also requires a nonresident caveator to designate a Florida resident to serve as agent, but only if the nonresident caveator is not represented by a Florida probate attorney.
3. RULE 5.3425. SEARCH OF SAFE DEPOSIT BOX. This rule deals with the procedure for gaining access to a decedent’s safe deposit box. This is commonly done to find out whether the decedent left a will or whether there are any assets that would require Florida probate. The rule provides that, once Court determines that a person is entitled to search a safe deposit box, the Court must issue an Order that includes the following:
   1. An authorization to search the safe deposit box in the presence of an officer of the institution.
   2. At the petitioner’s request, the officer of the institution is authorized to remove and deliver the contents of the safe deposit box as follows:
      1. Any purported will, codicil, or memorandum transferring tangible personal property must be given to the appropriate Florida probate court;
      2. Any purported deed to a burial plot must be given to the petitioner; and
      3. Any life insurance policy must be given to the named beneficiary.
   3. The officer must make a complete copy of any document removed from the safe deposit box and include a memorandum of delivery that includes certain information about the transfer.
4. RULE 5.360. ELECTIVE SHARE. This rule is amended to confirm with Florida Statutes 732.2125(2), which deals with the exercise of the spouse’s right of election by an attorney-in-fact or guardian of the surviving spouse. The law new requires a finding by the court that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime. The amended rule simply requires that this determinate be included in the order granting the spousal election.

The rules are out for comment until February 7, 2011. The text of the proposed rules, as well as the procedures for submitting comments, can be found here.