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Probate Law

Cape Coral, Fort Myers, Lee County, Florida

Probate law is the legal process of settling an estate, proving the validity of a will, and appointing an executor. In this manner, both the personal and business affairs of the deceased, or decedent, can be taken care of. It is the way in which the decedent’s estate is distributed among their heirs or beneficiaries. If someone dies owning property, their estate will need to go through the probate court system.

The probate court system is designed to make that all creditors are handled and that beneficiaries receive their distributions free and clear of debt. If there are any disputes that arise between beneficiaries, or questions about the proper management of the estate, the probate court, along with the help of a personal representative (also known as the administrator or executor), will settle these problems.

Validity of Wills

Because one of the issues examined in probate court is the validity of the will, you need to be sure that everything is in order before it gets to this point. In Florida, you must sign your will in the presence of at least two witnesses who are present at the same time and place. A notary public is also usually present in addition to the witnesses. You need to keep the original copy of the will in a safe place since it must be presented to the court at the time of your death.  In this way, the probate will be able to see that your wishes are your own and that the will has not been tampered with.

Intestate

If someone has died without creating a will, this means they have died “intestate.” In this case, the court will decide who receives the assets rather than any heirs or beneficiaries of the decedent. In Florida, the law of intestacy states that any property left over after payment to creditors, taxes, and other expenses (called residue) will go to:

• Decedent leaves a spouse, but no children, the spouse is entitled to receive all residue
• Decedent leaves children, but no spouse, the children are entitled to receive all residue
• Decedent leaves a spouse and children, and the children are of both spouses, the spouse is entitled to the first $60,000 and first half of the residue, and the children entitled to the second half
• Decedent leaves a spouse and children, one or more of whom are not of both spouses, the spouse is entitled to the first half of residue, the children the second half

In addition, Florida law allows that the spouse is entitled to appointment as the personal representative of an intestate estate. If there is no spouse, then a majority of heirs will select someone to this preference. However, the court will make the final decision.

Probate law also includes estate planning and trusts, as well as wills.

If you are interested in obtaining an experienced probate lawyer in Cape Coral, Fort Myers, or Lee County, Florida, please contact the law office of Lusk, Drasites, Tolisano & Smith, P.A.