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Probate and Estate Planning

WHAT DOES A PROBATE LAWYER DO FOR YOU?

Florida is a state that requires several types of property to go through probate regardless of whether there is a Will (“testate”) or no Will (“intestate”) after one passes away. Many people believe that a Will is sufficient to “automatically” transfer property to their loved ones, but that is not the case in Florida. Florida has created a system in which a person’s property, after they have passed (the “decedent”), has to go through. This system is called probate. The system was created to protect creditors (individuals or entities that a decedent may have owed money to before they passed) and to protect other loved ones. For this reason, the courts require that forms be submitted identifying all potential creditors and family members who could potentially have an interest in the property that is being distributed. The court will appoint a “personal representative” to assist in the caring for and distribution of the estate. The personal representative is often identified in a Will or is determined by statute. The total property left by your loved one is considered their “estate” (i.e. real estate + stocks + liquid cash). The job of your probate lawyer is to efficiently assist and guide the personal representative, or other persons entitled to proceeds from the estate, by submitting the necessary documents to the court, to assist in answering questions that the court may have regarding the documentation provided, to defend the estate from lawsuits filed against it, to defend the estate from any creditors who have no rights to the estate, to assist in making sure that the estate is properly valued which could have potential tax consequences, and to assist in resolving any disputes between heirs as to who is entitled to receive what property or assets. The probate process is a complex process which can be unnecessarily delayed, result in you losing entitlement to property or assets, or result in personal liability against the personal representative if the estate is not properly administered. For that reason, it is advisable to seek legal counsel whenever you go through probate. Salvation Legal is here to assist you through this complex process. Please contact us to discuss your probate needs.

HOW MUCH DOES A PROBATE LAWYER COST IN FLORIDA?

The cost for probate varies across location and is dependent on the value and size of the estate, the amount of people the attorney is representing, and whether there is going to be litigation to determine which heirs get what property. Probate in a way is a form of litigation but if all of the decedent’s heirs are in agreement with the way the property will be distributed, the process can be done without having to go in front of a Judge to present evidence or make arguments. That is not the case if there is a beneficiary that is arguing, for example, that the decedent’s Will was fraudulent or executed under duress. In these circumstances, an attorney will need to go in front of a Judge to explain why the Will should or should not be accepted by the Court. The additional costs involved for probate litigation can significantly raise the cost of representation. For this reason, many attorneys provide representation at an hourly rate. Hourly rates for an attorney in a probate case can range anywhere from $250 per hour to $400 per hour and in some circumstances more. Florida law though does provide guidelines for reasonableness of how much an attorney may charge for their services in a probate matter. This is specifically provided by Florida Statute Section 733.6171 which provides “guidelines” depending on the value of the estate. The value of the estate is the total value of all the assets that are to go through probate combined (i.e. real estate + stocks + liquid cash = value of estate). As the value of the estate increases, so does the amount that the attorney can charge. The statute is not a cap or minimum though and an attorney and client can enter into an agreement that is below or exceeds these guidelines. The Florida courts have now required that the following disclosure be provided to all persons hiring an attorney to represent them in probate:

Mandatory Disclosures Regarding Attorney’s Fees in Probate Administration

1. There is not a mandatory statutory attorney fee for estate/trust administration.

2. The attorney fee is not required to be based on the size of the estate/trust, and the presumed reasonable fee [based upon the statutory schedule] may not be appropriate in all estate/trust administrations.

3. The fee is subject to negotiation between the personal representative/trustee and the attorney.

4. The selection of the attorney is made at the discretion of the personal representative/trustee, who is not required to select the attorney who prepared the will/trust.

5. The personal representative/trustee shall be entitled to a summary of ordinary and extraordinary services rendered for the fees agreed upon at the conclusion of the representation. The summary shall be provided by counsel and shall consist of the total hours devoted to the representation or a detailed summary of the services performed during the representation.

To find out the cost for Salvation Legal to represent you in your probate matter, contact us to get a free quote.

Below we have provided a link to the Statute regulating amounts attorneys in Florida can charge for services in a probate matter.

SHOULD I HIRE A PROBATE ATTORNEY?

Hiring a probate attorney is a personal preference, but just like all areas of law in Florida, there are many complex issues which could harm you and the other persons who are heirs to the decedent. Additionally, some probate judges prefer or even require that a personal representative hire an attorney to represent them in a formal administration (see article regarding the difference between formal and summary administration). The Florida Bar states:

“A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.” See https://www.floridabar.org/public/consumer/pamphlet026/.

Probate in Florida is a regulated process which requires specific steps to be completed before the Court will allow you and your family to take possession of property owned by your loved one that recently passed away. Additionally, there could be serious tax consequences which could affect the amount of taxes taken out by the federal government. Currently, the state of Florida does not impose estate taxes, but the IRS does. If the value of your estate is over $11.7 million dollars (double that for married couples), then the estate could be taxed. The job of your attorney at that point would be to make sure the Court properly values the estate so that the estate is not unnecessarily taxed. For example, in a recent ruling in the estate of Michael Jackson, Mr. Jackson’s family probate attorney was able to show that the value of the estate was not the $482 million, as initially estimated, but instead $111 million. This significantly reduced the amount of taxes that were to be assessed by the IRS. Another factor to take into consideration is the amount of time the administration of the estate can take. Salvation Legal has the experience you require to make sure that all the documents needed by the Court are provided as quickly as possible so that the estate can be discharged (closed) as quickly as possible. Delays in providing the Court with the documentation and information necessary to administer the estate could delay the matter for a year or longer. Finally, if the estate is going to be contested in any way, you should make sure that you retain a lawyer to represent you as it is likely that the other party will hire an attorney. This can happen if the estate is sued or if a relative believes that they are entitled to more than a Will bequeaths. This process requires presenting arguments and providing evidence to the Judge and to make arguments on your behalf. To make sure that your interest and the interest of those you are assisting as a personal representative of the estate, you should make sure to seek the advice and guidance of a lawyer.

SUMMARY PROBATE ADMINISTRATION VS. FORMAL PROBATE ADMINISTRATION

The Florida Legislature has created multiple avenues that a beneficiary of an estate can use to receive benefits from a loved one who has passed. Summary and Formal Probate Administration happen to be the most common and are dependent on the size and value of the estate and how much time has passed since the person has been deceased. Florida Statute Chapter 735 governs small estates and says that a summary administration proceeding can be used to administer them. A small estate is defined as an estate that does not exceed $75,000.00 in value or where the decedent passed away more than two (2) years ago. If you loved one’s estate falls under one or both of these requirements, you can seek a summary administration of the estate. The benefit of a summary probate administration is that the process is simpler, faster, and most of the forms needed are often provided by the courts. Formal administration, on the other hand, are for estates with a value $76,000.00 or greater and where the person passed away less than 2 year ago. This process involves additional filings and is also used for more complex issues such as disputes over the validity of a Will or for the sale of real property. It is recommended that a Personal Representative use an attorney to assist with the Formal Probate administration process and many courts even require a Personal Representative to have any attorney. If you want to learn more about the differences and or unsure which type of probate you need to file, contact us today.

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From the Florida Bar: Understand Probate

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Personal Injury

FINDLAW.COM - FLORIDA AUTO ACCIDENT HANDBOOK

Useful next steps to take if you are ever involved in an accident.

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UNDERSTAND PERSONAL INJURY PROTECTION (PIP) AND THE "14 DAY RULE"

Florida Statue about Florida’s PIP/No-Fault Law

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THE FLORIDA BAR - CONSUMER PAMPHLET: AUTOMOBILE INSURANCE

Understand what automobile insurance is and what it covers.

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WHY YOU SHOULD CONSIDER UNINSURED/UNDERINSURED MOTORIST PROTECTION IN FLORIDA

If you’re driving in Florida, purchasing uninsured/underinsured motorist (UM) protection is not just a good idea—it’s a crucial step in safeguarding yourself. Why? Because in Florida, an astonishing 20% of drivers, or 1 in every 5, are on the roads without any form of insurance coverage. This stark statistic exposes you to a significant risk of being involved in an accident with an uninsured driver, leaving you without any recourse for compensation for bodily injuries incurred.

The reality of the situation makes the addition of UM protection to your insurance policy an intelligent decision. With an annual cost ranging only between $50 and $75, the investment in your safety and peace of mind is minimal when weighed against the potential benefits. UM coverage is essential not only for accidents involving uninsured drivers but also in situations where the at-fault driver’s insurance is inadequate to cover your damages. It acts as a vital secondary source of payment, ensuring that you are compensated fairly.

In Florida, the importance of UM coverage is recognized to the extent that insurance companies are mandated to present you with a UM selection or rejection form at the inception of any policy that includes bodily injury liability coverage. If you find that you’ve never filled out this form, it’s possible you’re entitled to UM coverage without even realizing it.

Opting for uninsured/underinsured motorist protection is a wise choice for any Florida driver. It provides a safeguard against the unpredictability of sharing the road with uninsured drivers, offering both financial protection and peace of mind. In an environment where the risk is not just hypothetical but substantiated by significant statistics, ensuring you have adequate coverage is both a prudent and professional decision.

Construction

DID YOU HAVE WORK PERFORMED BY AN UNLICENSED CONTRACTOR?

It is well known that all contractors must be licensed in the state of Florida to legally perform construction at your property. This includes roofers, general contractors, air conditioning contractors, mechanical contractors, plumbing contractors, residential pool contractors, etc. Florida law places the responsibility on the homeowner to verify whether a contractor is properly licensed. However, if you hired an unlicensed contractor who failed to perform under a residential contract, your only remedy is a lawsuit in civil court. Unfortunately, the Construction Industry Licensing Board and Department of Business and Professional Regulation will not assist with any financial losses caused by an unlicensed contractor. A common indicator that your contractor may not be licensed is if they insist on performing the work without a permit since building permits can only be obtained by licensed contractors or qualifying agents. If your contractor represented that they were licensed, but they were not, he/she could be guilty of a first degree misdemeanor if it was a first offense, or a third degree felony if previously found guilty of the violation and subject to fines. It is also important to note that Florida law prohibits unlicensed contractors from enforcing contracts for work that could only be performed by a licensed contractor.

MY CONTRACTOR BREACHED OUR AGREEMENT. WHAT CAN I DO?

Residential contractor disputes are incredibly common in Florida. Most cases involve a scenario in which the contractor took a significant down payment, or continued to request additional money from a homeowner, but failed to complete the contracted-for work. The contractor continuously gives the run-around to their customer, causing significant delays and anxiety to homeowners who are left without receiving the benefit of what they bargained for. Florida law requires that a contractor who receives a down payment totaling more than 10 percent of the contract price for repair, restoration, improvement, or construction to residential property, apply for permits necessary to do the work within 30 days after the date payment is made, except where the work does not require a permit pursuant to local codes and ordinances. The work must begin within 90 days after the date that all necessary permits are issued, unless the contractor has just cause for failing to apply for the permits, start the work or refund the payment or unless the person who made the payment agreed in writing to a longer period. A contractor who received money for repair, restoration, addition, improvement or construction of residential real property in excess of the value of the work performed, may not fail or refuse to perform any work for any 90-day period, or any period that is mutually agreed upon in the contract. If the contractor fails to comply, you must send a written demand letter to the contractor and allow 30 days for the contractor to cure any breaches. If the contractor fails to cure the breach within 30 days, legal action is necessary.

Is it important to save all communications you have with a contractor who is causing delays. Save your text messages, emails, and any written communications so that you document your efforts to gain the contractor’s compliance.

HOW CAN I GET COMPENSATED IF MY CONTRACTOR STOPPED WORKING OR ENGAGED IN MISCONDUCT?

Did you know that in 1993, Florida created a fund to compensate certain claimants when a contractor has engaged in improper conduct on the claimant’s residence? The fund is available to claimants who contracted for the construction or improvement of a residence located within Florida and who obtain a final judgment in any court of competent jurisdiction, or is awarded restitution by the Construction Industry Licensing Board, or receives an award in arbitration against a licensee, on grounds of financial mismanagement or misconduct, abandoning a construction project, or making a false statement with respect to a project, arising directly out of any transaction when the contractor was licensed and engaged in any of the activities enumerated under s. 489.129(1)(g), (j) or (k), on the homeowner’s residence.

The fund applies to general, residential, and building contractor licensees (Division I Contractors). It also applies to sheet metal, roofing, air conditioning, mechanical, pool and spa, plumbing, underground utility and excavation, solar, pollutant storage systems, and specialty contractors (Division II Contractors), but only if the contract was entered into after July 1, 2016.

There are three ways to access the fund: 1) obtaining a final judgment against a contractor in a civil proceeding that is based upon a specific violation of the licensing law or the lien law; 2) obtaining an arbitration award (which is typically confirmed and becomes a final judgment) against a contractor that is based upon a specific violation of the licensing law or the lien law; or 3) obtaining an order of restitution from the CILB through the disciplinary administrative process that is based upon a specific violation of the licensing law.

You may be wondering how much you would be entitled to from the fund. For contracts entered into after July 1, 2016, claimants may only recover the amount equal to the judgment, award, restitution order, or $25,000, whichever is less, or an amount equal to the unsatisfied portion of the judgment, award, or restitution order, but only to the amount of actual damages, and only to the maximum of $25,000 for Division I contractors, and $15,000 for Division II contractors. Fund payments cannot exceed the total aggregate for each contractor, and the total aggregate Division I payout is $500,000, and Division II claims for contracts entered into after July 1, 2016, are limited to $150,000.

CAN I RECOVER UNDER THE FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT (FDUTPA) OR FLORIDA STATUTE § 501.201?

It would seem sensical to believe that your right to recovery under FDUTPA, especially when a finance agreement is involved, would include the amounts of any down-payments, payments on the loan, interest or balance of the loan. If no financing is involved, you may believe that you are entitled to a full refund of the service or product at issue. However, Florida law does not provide for the recovery of consequential damages when a FDUTPA claim is brought. Instead, the law provides that an injured party is only entitled to actual damages, which would be the difference in the market value of the product or service in the condition in which it was delivered and the condition in which it should have been delivered. As a result, the court needs evidence of the market value of the service or product when delivered and the value of the service or product if there was no issue. Additionally, you cannot seek recovery of damage to a property other than the one that is the subject of the transaction. For example, if you contracted to purchase a brand new AC unit, but instead were fraudulently sold a used AC unit, under FDUTPA, you would not be able to seek damages caused to your floors by the used AC unit (that would be considered consequential damages). You also would not be entitled to a full refund of the cost of the AC unit (also considered consequential damages under the statute). Instead, you would only be entitled to recovery of the difference in the market value of the used AC unit and the value of a brand new unit of like kind and quality. This does not mean that you would not have other avenues of recourse, such as a breach of contract or negligence claim. The FDUTPA statute is meant to provide supplemental recourse in addition to any other recourse that you would be entitled to. The only instance in which you would be entitled to a refund of the purchase price of the product would be if the product was deemed valueless due to a defect. It is also worth noting that many clients are interested in seeking pain and suffering due to the stress that a FDUTPA violator’s conduct causes them. This is simply not an avenue that is recoverable under the FDUTPA statute and Florida law is very clear that damages for pain and suffering are available in specific circumstances in which there is an injury.

From the Florida Bar: What you should know before building or improving your home

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At Salvation Legal, we’re committed to delivering top-notch legal services tailored to your needs. Whether you’re dealing with probate, planning your estate, facing a personal injury, or encountering business disputes, our team of experienced attorneys is here to provide guidance and representation. Contact us today to discuss your legal needs and take the first step toward a brighter legal future.

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