Weidner Law has plenty of experience when it comes to probate in Florida and not too long ago they used that experience to answer some of your probate faqs. Today, they’re going to answer a few more of your probate questions in the hopes of making the whole probate in Florida concept an easier one to face!
Probate in Florida: More FAQ’s About Your Experience with Probate
Q: Do I Have to Be the Executor of the Estate?
The chances are that if you are named as the executor of someone’s estate, they will talk to you about the process beforehand. This is the perfect time to let that person know that you don’t feel that you are well enough equipped for the job and would prefer that someone with more experience or knowledge handle the process instead.
If someone dies without leaving a will, the probate court will appoint an administrator of the estate. To make this appointment, they will turn to state law for guidance. In the state of Florida, this means that the preference of the court is to have the surviving spouse of the deceased to act as the administrator of the estate. If there is no surviving spouse or the surviving spouse is unable to serve as an administrator, the court will appoint the person voted by a majority of interest of the heirs of the estate. If no person is voted to become the administrator of the estate, the court will then turn to the heir nearest in degree for appointment. If multiple candidates are available, the court will choose the better qualified of the two to serve the position.
If you are the executor of the estate and you no longer wish to serve the position, your next step depends upon where you are in the probate process. If probate has not yet begun then you should notify the alternate executor as named in the will of the deceased that they are to serve as the executor. If there is no will, you may resign from the position and notify the court of your decision. From here. the court will then appoint a new executor to the estate.
What Makes Someone Unqualified to Serve as an Estate Executor?
There are some situations where individuals are considered unqualified or unfit to serve as an estate executor. These situations include:
- If they are under 18 years old
- If they are mentally or physically unable to perform the duties required of them as an executor
- If they have been convicted of a felony
What Tax Forms Need to Be Completed During Probate?
The executor of the estate is responsible for various duties including filing final tax documents for the deceased. The actual documents that will need to be filed are going to vary depending on the person in question. The best way for an estate executor to get the necessary tax forms filed properly is to consult with an attorney as well as a tax accountant. There are tax accountants who specialize in probate areas and it’s best to consult one of these attorneys to ensure that all paperwork is completed and filed as necessary.
Some of the tax forms that you may be required to fill out as the executor of the estate include:
- The decedent’s final Form 1040, U.S. Individual Income Tax Return, reporting the decedent’s income for the year of the decedent’s death.
- One or more Forms 1041, U.S. Income Tax Return for Estates and Trusts, reporting the estate’s taxable income.
- Form 709, U.S. Gift Tax Return(s), reporting gifts made by the decedent prior to death.
- Form 706, U.S. Estate Tax Return, reporting the decedent’s gross estate, depending upon the value of the gross estate.
Who Decides Where Probate Will Take Place?
The law. Probate should take place in the county of state where the deceased person was domiciled upon their death. For example, if your grandmother lived in a home in Tampa Bay when she passed away, probate would take place in Hillsborough County, Florida. If your grandmother did not own property in the county where she passed away, however, probate would take place in a county where she did own property. If she owned no property, then probate would take place in the county where any of her debtors resides.
Why Do I Have to Have Probate “Okay” My Inheritance if a Will Already Designates Me As the Beneficiary of an Item?
If, for example, your grandmother bequeaths you her diamond ring in her will, probate is still a necessary procedure and your ownership to that ring will not be recognized until the estate goes through probate. The main reason for this is to ensure that it was actually your grandmother’s intention for you to have that ring. In the example above, the court must be able to see that it was truly your grandmother’s intention for you to have the ring. This means verifying that your grandmother’s last will and testament was actually real and not written under duress or when she was not of sound mind.
In most cases, the last will and testament is shown to be true and correct and the asset distribution is carried out as directed. If the last will and testament is shown to be incorrect, invalid, or false, however, state law will establish the distribution of assets.
Are You Concerned About Probate in Florida?
If you are dealing with probate in Florida or if you want to begin on your own estate planning process, Weidner Law can help! Just pick up the phone and dial 727-954-8752 to arrange for a consultation with attorney Matthew Weidner today!