Question about Probate in Florida
AndyS
in South Florida.
The will was filed, and I am the only heir.
The Guardianship told me that I have to "open an estate" so that
the assets can be transferred into it from the guardianship. Otherwise
the guardianship will continue to charge "their expenses" to it.
However, since I live in Texas, I have been unable to locate an
attorney in Florida, so far, that doesn't want about $3K up front
to do this.
Can I "open an estate" by myself and find an attorney later, so
that the guardianship will stop charging to the remainder?
I would appreciate any advice on how to do this. The value of
the estate is less than $30K, but contains things I would like
to keep in the family....
Deadrat
ef125c...@g22g2000prf.googlegroups.com:
> I recently lost a close relative who was under a guardianship
> in South Florida.
Is the guardian a public guardian, a family guardian, or a compensated
guardian?
> The will was filed, and I am the only heir.
>
> The Guardianship told me
Rather the guardian told you. Who is it?
> that I have to "open an estate" so that
> the assets can be transferred into it from the guardianship.
A guardian makes decisions for an individual who has been legally
determined incompetent to make these decisions for himself. The
guardianship isn't really a repository for property. A will, properly
executed and filed, should set up the executor to handle the estate of
the maker without any further "opening." But you still have to transfer
responsibility from guardian to executor.
Who's the executor?
> Otherwise
> the guardianship will continue to charge "their expenses" to it.
The guardianship will terminate upon the death of the ward. However, the
guardian must still be discharged, and until that happens, the guardian
still carries some responsibilities. That might include taking care of
burial.
The guardian must continue to be prudent in taking care of the former
ward's property, must file reports, and generally, get court approval for
actions taken after a ward's death.
If you're the executor, perhaps you can talk to the guardian, and discuss
what actions each of you needs to take. Bear in mind, that the guardian
may well have legitimate expenses.
> However, since I live in Texas, I have been unable to locate an
> attorney in Florida, so far, that doesn't want about $3K up front
> to do this.
Yeah, I think the lawyers got their minimum fees written into the law.
> Can I "open an estate" by myself and find an attorney later, so
> that the guardianship will stop charging to the remainder?
>
> I would appreciate any advice on how to do this. The value of
> the estate is less than $30K, but contains things I would like
> to keep in the family....
I had a friend, named as an executor, who looked into doing this herself
in Florida. Things are somewhat easier for beneficiaries of small
estates, which I think is your case. Yes, it's possible for you to do
this yourself. It's not that hard, especially if you can find a helpful
court clerk.
But you probably can't do what you want from Texas. And you've got the
addtional task of discharging the guardian. Which means that you should
seriously consider finding a lawyer to handle things.
*** I am not a lawyer, so this can't be legal advice. ***
*** I am not Dr. Phil, so this isn't even personal advice. ***
Stuart A. Bronstein
> I recently lost a close relative who was under a guardianship
> in South Florida.
>
> The Guardianship told me that I have to "open an estate" so that
> the assets can be transferred into it from the guardianship.
>
> However, since I live in Texas, I have been unable to locate an
> attorney in Florida, so far, that doesn't want about $3K up
> front to do this.
You can try it yourself, but from Texas it might be difficult.
You might try contacting the Public Guardian. They may do probates
when there is no one else around to do them. However whether you pay
someone now or later, my guess is that $3,000 is pretty reasonable.
grendal
[OP] Lives in Tx but has a deceased relative who was under
guardianship. Needs to 'open an estate'.
First, something doesn't sound kosher about the guardianship
continuing past death.
I think you should try to find an attorney in Florida and talk to them
first about the guardianship and what it would take to
get the will in to probate.
If what I read, you said that the will was filed. Meaning that its in
front of the probate court.
You could petition the court to become executor of the estate which
would end the guardianship.
But I'd definitely talk to a couple of lawyers in FL.
3K isn't a lot of money, and I don't know your financial situation, so
I suggest that you consider first talking to someone in legal aid
local to you for help and ideas.
HTH
-G
Mike Jacobs
> I recently lost a close relative who was under a guardianship
> in South Florida.
My condolences, Andy.
> The will was filed, and I am the only heir.
When you say the Will was "filed," did that mean SOMEONE already
submitted it to the appropriate court or agency for probate? Or did
you mean something else?
Who did the Will nominate to serve as Executor/Personal Representative
(or whatever it is called in your state)? You? The guardian? Or
somebody else, or some institution?
> The Guardianship
I assume you mean "Guardian," a specific person. "Guardianship" is
what the Guardian _does_ (or _did_, up until your decedent died), i.e.
he has the legal appointment to guard this relative's assets. Or, did
you mean by that phraseology to imply that this Guardian is an
institutional fiduciary?
> told me that I have to "open an estate"
If someone already submitted the will to probate, that's what DID
happen, already. Perhaps you could clarify exactly what has already
happened in that regard.
I don't know FL law, and especially since an awful lot of geezers
retire down there, they may have unusual laws in this regard. But, in
most states all that is needed to "open an estate" is that an
authorized person (you most likely do qualify, as being the sole heir,
especially if you were also named as Executor, but also if the
nominated Executor has failed to timely act) must walk into the office
of the Probate Court Clerk, or Register of Wills, or whatever the
office is called, in the County where decedent was domiciled at the
time s/he died, and file a Petition to open probate, attaching the
Will (if any).
> so that the assets can be transferred into it from the guardianship.
Good idea.
> Otherwise
> the guardianship will continue to charge "their expenses" to it.
It sounds like you are talking about an institutional fiduciary, here.
If you desire they have no further role in management of the
decedent's estate, by all means you should act quickly, because they
_will_ continue to collect their monthly fee so long as they are the
ones maintaining those accounts.
> However, since I live in Texas, I have been unable to locate an
> attorney in Florida, so far, that doesn't want about $3K up front
> to do this.
I guess it depends on how much work will be involved, on whether FL
law says you can do this long-distance, and on whether you feel you
can do it all by yourself or may need some help. If there are NO
other relatives in FL, you may be in a bind, or you may need to take
some time and travel there yourself to get this done personally.
It's not that hard, on a simple estate (at least in MD), for a family
member to "do it yourself." The attorney is only there as an advisor,
and the amount of work (and pay) the attorney gets varies, depending
on the complexity and need.
However, many states have a statutorily set fee structure for what
estate attorneys and other fiduciaries are permitted to charge, and if
so, Lots Of Luck finding one who is willing to charge you _less_ than
that for a flat fee quote. The only other thing I can think of is,
"doing it yourself" but finding an attorney willing to give you bits-
and-pieces advice, without putting his name on any of the papers, for
an hourly rate. You may get away with spending only a few hundred
bucks that way. But, you will probably have to travel to FL and file
the papers yourself. That's not so bad, is it? Winter is coming.
Enjoy the sun.
> Can I "open an estate" by myself
Yes, _if_ the Will (and/or FL law) authorizes you to do so. Read the
Will, and ask the Court Clerk.
> and find an attorney later,
Yes, _if_ the answer to your previous question is also "yes."
> so that the guardianship will stop charging to the remainder?
Do whatever the Court Clerk tells you to do, to open the estate, so
you can get them out of the picture ASAP, if that's what you want to
do. Wasting time is throwing away money if they are not doing you
any good by their "services."
> I would appreciate any advice on how to do this.
You can always call the appropriate County office in FL and ask them
what you need to do to file for probate - after you find out what
office to call, which may take you a little time - and they may even
have a handy brochure or guidebook for family members facing your
situation. As this is FL, retirement capital of the USA, I would
frankly be surprised if they _didn't_ have such an aid for decedents'
families.
Also, be sure you KNOW what has already been done in terms of previous
actions, and where all the paperwork is.
Other than that, I can't help you with any specifics of FL law. If
you find you need that kind of advice, you'll have to hire a FL
lawyer.
> The value of
> the estate is less than $30K,
Frankly, a lawyer charging $3k (10% of a $30k Estate) to do the whole
thing for you, is _not_ that much. MD law, IIRC permits a fiduciary
to charge up to 9% of the first $20,000 of the gross estate value
(i.e. $1800) and 3.6% of the excess, which would mean a fee of about
$2180 as the cap for handling a $30k estate here. FL is a bit more,
but it certainly sounds ballpark, not orders of magnitude out of line.
> but contains things I would like
> to keep in the family....
If there are tangible objects you want to keep, you had better hustle
yourself off to FL and take care of safeguarding _that_ part of the
Estate at least, or else the Guardian may just decide to sell them off
to convert them to cash (if truly valuable), or throw them away (if
only sentimental value applies). Don't waste time. In the
meanwhile, instruct the Guardian, in writing, that you do NOT want him
to get rid of (sell OR give away) any tangible assets OR do anything
else with the liquid account assets until you get things set up for
him to turn control over to you.
While you're down there, you can do whatever you need to do to file
the probate paperwork, and once you (or somebody) gets appointed as
Executor of the Estate, you can call off the Guardianship dogs by
showing them those papers and demanding they turn over title and
control of those Guardianship assets to the Probate Estate. Then, all
you will have to do is complete the Probate process, whatever that may
require, pay the required fees to the State (and to your lawyer, if
you hire one) and pay off the creditors (if any), then the rest is
yours.
Good luck,
--
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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