Volume XXXII: JANAURY 2021 THREE PART SERIES: FREQUENTLY ASKED PROBATE AND ESTATE RELATED QUESTIONS PART TWO
Volume XXXII - January 2020
THREE PART SERIES:
FREQUENTLY ASKED PROBATE AND ESTATE RELATED QUESTIONS
By: Norman W. Nash and Yvette Rodriguez Brown
Question 1: My sister passed away and I am her only heir. Can I file a probate case on my own without an attorney?
Answer: Yes but only in one limited circumstance. Under the Florida Probate Rules, that one circumstance is if you are the “sole interested person.” What is an “interested person?” The Florida Probate Code defines an “interested person” as:
Any person who may reasonably be expected to be affected by the outcome of the particular [probate] proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims [related to creditors of the deceased], the trustee of a [revocable trust] is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. 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.
It is rare that there is only one interested person in a probate proceeding but if that is the case, then you can represent yourself. Is it wise to represent yourself? Only you can answer that question. However, a probate proceeding is very detailed and has numerous requirements and deadlines that must be met, even if you are the only interested person. Here are just a few. If the deceased has been dead for less than two years a Notice to Creditors must be published twice in a newspaper in the county where the deceased was domiciled at the time of death so that any unknown creditors will have an opportunity to file claims; the probate court may require a bond of the personal representative; if the deceased was fifty-five years old or older at the time of death, The Florida Agency for Healthcare Administration must be provided notice of the probate proceeding and a copy of the death certificate so it can determine whether any Medicaid funds were paid on behalf of the deceased and so that can file a claim in the probate proceeding, and; if any claims are filed you will need to determine whether they are valid and how do deal with potentially invalid claims. Those are only a few of the requirements. If the deceased has been dead for over two years, some requirements do not apply. Additionally, most probate judges have specific procedures regarding how cases are handled in their courts. In any event, a convicted felon, whether the sole heir or not, cannot be the personal representative.
Note that the question states that the surviving person is an “heir” but the definition above only mentions a “beneficiary.” Those terms are often used interchangeably and can be so used for the definition of an “interested person. “ However, the difference may have relevance in any particular situation. An “heir” is someone who inherits from a person without a Will as provided by Florida law. A beneficiary is someone who is named in a Will to inherit. Why does it matter? If there is a Will, it name only one beneficiary. If there is no Will, it may be more difficult to ascertain whether there is more than one heir.
Takeaway: The takeaway is that you can file a probate case on your own if you are the “sole interested person.” Probate is a detailed proceeding with many deadlines and requirements. Knowledge of the Florida Probate Code, the Florida Rules of Probate Procedure, and the requirements of the specific probate judge assigned your case is essential.
Question 2: How do I know if my brother filed a probate case for our father?
Answer: There are a couple of ways. First, you can call the Clerk of the Court in the county where your father was domiciled when he passed away and ask if probate case has been filed. You can also look online on the Clerk of the Court’s website. If you find a probate case online, you will be able to see what pleadings have been filed and when, however, you will not be able to view the actual pleadings online. That is prohibited by Florida law. If no probate case has been filed, you can file a pleading called a “Caveat” with the Clerk of the Court in the appropriate county. Thereafter, anyone who files a probate case for the deceased is required to give you notice of the probate case so that you can take appropriate action. You can file a Caveat anytime before or after the death of the person. If you file it before death the Caveat will expire two years after filing.
A probate case usually must be filed in the county where the deceased was domiciled at the time of death. Sometimes a person dies one county and is a domiciliary of a different county. This can happen when the deceased was at an assisted living facility, hospital, or other facility but the deceased lived in another county. If you are not sure of the correct county, contact all counties where you think the deceased may have been domiciled.
Takeaway: The takeaway is that you can easily find out if a probate case has been filed and that you can file a Caveat before or after death so that you will be notified if a probate case is filed.
Question 3: How do I transfer the title of my father’s vehicle to me?
If there is no probate proceeding you may be able to transfer title at the Tax Collector’s office. The Tax Collector has forms that can be used in some situations. If there is a probate proceeding, transfer of title depends on the type of probate proceeding. If it is a formal probate proceeding, then the Personal Representative would transfer title at the Tax Collector’s office. If it is a summary probate proceeding then an order of the probate court will state to whom the title is to be transferred. The Tax Collector would then transfer title in accordance with the order.
Takeaway: Title must be transferred by the Tax Collector. Contact the Tax Collector and ask what is required in your particular circumstances.
Norm Nash has been practicing law for over thirty years in the areas of probate, real estate, commercial, corporate and business transactions. He attended law school at the University of Denver where he graduated in the top fifteen percent of his class, was an editor on the law review, and earned the AmJur award for the highest grade in ethics.
Yvette Rodriguez Brown is a Stetson University College of Law graduate with over 20 years experience in Wills & Probate, Bankruptcy and Local Government. She also speaks Spanish.
This article is for informational purposes only and you should seek professional legal advice before taking any action based on this article. Further, this information is subject to change due to the rapidly changing legal, political and business environment.