How to Assist/Train Your
Attorney in Probate and
Guardianship
Presented to: PARALEGAL ASSOCIATION OF
FLORIDA, INC., Pinellas County Chapter
Hamden Baskin,III and Joseph W. Fleece, III
BaskinFleece
13577 Feather Sound Drive, Suite 550
Clearwater, Florida 33762
727.572.4545
www.baskinfleece.com
1 Paralegal Seminar
I.
OVERVIEW: PROBATE
what is probate?
A process to transfer a decedent's assets
to the intended beneficiaries after all valid
claims have been paid.
What is not included:
does not deal with joint accounts. life
insurance. trust assets or other property
interests which are governed by
contractual law such as payable on death
accounts.
What law applies?
II.
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Chapter 731. 732 and 733 of the FlOrida Statutes
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Florida Probate Rules
OPENING A PROBATE ESTATE
Petition For Administration
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Intestate Estate where beneficiaries are determined by the
intestacy statutes 732.101; 732.102 and 732.103
• Testate Estate- A will is admitted to probate. The will has no
legal effect until an order has been entered admitting it to
probate. Until then it is merely a paper writing.
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Appoint personal representative to administer the estate
o personal representative is a fiduciary who has a duty
to administer the estate impartially and in the best
interests of not only the beneficiaries but also the
creditors of the estate
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Practice Pointer: Clients will often want to distribute
personal property. before the Will is admitted to probate
and Letters of Administration are issued. They should be
advised against this. and encouraged to protect the
personal property from removal before a proper inventory
is done. If family members are down for the funeral. and
insist on "taking" any personal property with them. have
the client make a receipt. describe the item. and include a
provision for a return of the item. if required to do so.
The items must still be included in the inventory. and
va lued. Suggest a photo be taken of the items as well.
o duty to marsha l and protect the assets of the estate.
o duty to notity all known and reasonably ascertainable
creditors.
Practice Pointer: Review the last year of checks. debits.
electronic payments. to see if payments were made on any
obligations. Look for deposits too. to see if payments were
made to the decedent to help locate accounts and other
assets.
o Duty to serve a copy of the Notice of Administration on
all interested persons per Rule 5.240. An Interested
Person is a d efined term. and includes those persons
who might be affected by the administration of the
estate.
o Duty to publish Notice to Creditors
o Practice Pointer: Be sure to actually review the Proof
of Publication. The publisher will send a proof just
days before it publishes. Check for wrong n a mes. It is
not uncommon to find errors caused by the publisher.
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or from the law firm. but using a form with a former
estate name. Very embarrassing.
o Duty to pay all valid claims after the claims period
expires. Payments should be made with within 5
months. after which. interest may be claimed.
o Duty to make sure all federal and state taxes are paid
o Practice Pointer: Returns at issue: Decedent's final
1040. This picks up income up to the date of death.
Next is the Form 1041. Estate Income Tax Return.
running from the date of death until December 31 . or
for a full one year. A trust administration may have its
own Form 1041 due. which is ordinarily on a calendar
year. It is possible to combine the trust and estate
Form 1041 . if a proper election is made. It is often a
good idea to outsource the returns. to cut liability for
the firm. and to build relationships with accounting
firms.
o Duty to keep detailed records of all receipts and
disbursements of estate assets so that an accounting
can be accurately prepared at the conclusion of the
estate administration.
o Practice Pointer: Have the client send copies of all
receipts. bills. etc .. to avoid having to scramble to put
together the accounting for the client. Generally. it is
preferable to have the attorney hold the check book.
set up an estate ledger on Quickbooks or QUicken. and
have all checks issued by the attorney. and sent to the
client for Signa ture. Many times having the a ttorney
take a deposit in his or her trust account for
$5.000.00. to pay the little bills. is helpful to cut down
the chance of the client making an error.
o Finally. to distribute all assets of the estate to the
benefiCiaries named in the will as their interests
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appear or to the intestate heirs after administrative
expenses have been paid.
Practice Pointers for the paralegal:
The way the Decedent's assets are registered and their value determines
the administration requirements:
• Summary Administration if total is $75,000.00 or less
• Formal Administration if total is over $75,000
Items to tell Client to bring to initial meeting:
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Original Wills, All of them! They all must be deposited.
Original Trust Instruments. All amendments too!
Decedent's personal Wallet will often have the social security
card, credit cards, license, association membership cards,
insurance cards, names and addresses, and other data.
Certified copies of Death Certificate (if issued)
Contact information for all beneficiaries or family members,
always easiest to obtain the social security numbers for all
beneficiaries, which is necessary later in the administration
and often difficult to convince beneficiary's to produce.
Documentation for all assets, including bank account
statements, deeds, life insurance policies, annuities, credit
card, prior year's tax return is often helpful to track
intangible assets
Documentation for all debts, including:'
current ongoing bills , i.e. phone, electric, mortgage, car
payment, etc.
o current medical bills
o Medicare and Insurance EOB's for the last 6 months
o Anything that looks like a bill
o Many times, it is helpful to have the client bring in
mail for the decedent. It will usually be on the kitchen
table, unopened!
'IT IS VERY IMPORTANT THE CLIENT BRING YOU ACTUAL
DOCUMENTATION. They think they know the right
information, but more times than not, what they tell you and
what it is, are two different things.
It's also important to remember your client is probably grieving and may
not be thinking clearly. Also, they have probably never been involved
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with an estate, so it's helpful to give them short, clear instructions ... be
ready to repeat yourself.
If you see your client is not understanding what your Attorney is
saying, ask your Attorney a question that might help clarity the subject
matter.
Be organized and proactive: Prepare an agenda for every meeting.
It helps keep the meeting timely & productive and provides
documentation of what was discussed
m.
NOTICE
A. WHY NOTICE?
A benefiCiary's interest as well as a creditor's interest in a
decedent's estate is a property interest that cannot be terminated
by court action without first providing that interested party with an
adequate opportunity to be notified and heard. This is the core of
the protection afforded by the 14th amendment to the United States
Constitution commonly known as procedural due process. "An
elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested
persons of the pendency of the proceeding and afford them an
opportunity to present their claims." See: Mullane v. Central
Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, (1950)
B.
FORMAL NOTICE
Rule 5.040 (a) Formal Notice.
(1)
When formal notice is given, a copy of the pleading or motion shall
be served on interested persons, together with a notice requiring the
person served to serve written defenses on the person giving notice
within 20 days after service of the notice, exclusive of the day of
service, and to file the original of the written defenses with the clerk
of the court either before service or immediately thereafter, and
notif'ying the person served that failure to serve written defenses as
required may result in a judgment or order for the relief demanded in
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the pleading or motion, without further notice. Ther e is a recent
Florida case, reversing the trial court for entry of relief after
expiration of formal notice, because the Notice did not specifically
state that failure to respond could result in entry of an Order for the
Relief Requested.
(2) After service of formal notice, informal notice of any hearing on the
pleading or motion shall be served on interested persons, provided
that if no written defense is served within 20 days after service of
formal notice on an interested person, the pleading or motion may be
considered ex parte as to that person, unless the court orders
otherwise.
(3)
Formal notice shall be served:
(A) by sending a copy by any commercial delivery service requiring
a signed receipt or by any form of mail requiring a signed receipt as
follows:
(i) to the attorney r epresenting an interested person; or
(ii) to an interested person who has filed a request for notice at the
address given in the request for notice; or
(iii) to an incapacitated person or a person with a developmental
disability to the person's usual place of abode and to the person's legal
guardian, if any, at the guardian's usual place of abode or regula r place
of business; or, if there is no legal guardian, to the incapacitated person
or person with a developmental disability at the person's usual place of
abode and on the person, if any, having care or custody of the
incapacitated person or person with a developmental disability at the
usual place of abode or regular place of business of such custodian; or
(iv) to a minor whose disabilities of nonage are not removed, by
serving the persons deSignated to accept service of process on a minor
under chapter 48, Florida Statutes; or
(v) on any other individual to the individual's usual place of abode
or to the place where the individual regula rly conducts business; or
(vi) on a corporation or other business entity to its registered office
in Florida or its principal bUSiness office in Florida or, if neither is known
after reasonable inquiry, to its last known address: or
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(B) as provided in the Florida Rules of Civil Procedure for service of
process; or
(C) as otherwise provided by Florida law for service of process.
(4) Service of formal notice pursuant to subdivision (3)(A) shall be
complete on receipt of the notice. Proof of service shall be by verified statement
of the person giving the notice; and there shall be attached to the verified
statement the signed receipt or other evidence satisfactory to the court that
delivery was made to the addressee or the addressee's agent.
(5) If service of process is made pursuant to Florida law, proof of service
shall be made as provided therein.
C. INFORMAL NOTICE
Rule 5.040 (b) Informal Notice, When informal notice of a petition or
other proceeding is required or permitted, it shall be served as provided
in rule 5 .04l(b).
Rule 5.04l(b) states as follows:
(b) Service; How Made. When service is required or permitted to be
made on an interested person represented by an attorney, service
shall be made on the attorney unless service on the interested
person is ordered by the court. Except when serving formal notice,
or when serving a motion, pleading, or other paper in the manner
provided for service of formal notice, service shall be made by
delivering or mailing a copy of the motion, pleading, or other paper
to the attorney or interested person at the last known address or, if
no address is known, leaving it with the clerk of the court. If the
interested person is a minor whose disabilities of nonage are not
removed, and who is not represented by an attorney, then service
shall be on the persons designated to accept service of process on
a minor under chapter 48, Florida Statutes. Service by mail shall
be complete upon mailing except when serving formal notice or
when making service in the manner of formal notice. Delivery of a
copy within this rule shall be complete upon
(1) handing it to the attorney or to the interested person; or
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(2) leaving it at the attorney's or interested person's office with a
clerk or other person in charge thereof; or
(3) if there is no one in charge, leaving it in a conspicuous place
therein; or
(4) if the office is closed or the person to be served has no office,
leaving it at the person's usual place of abode with some person of his or
her family above 15 years of age and informing that person of the
contents; or
(5) transmitting it by facsimile to the attorney's or interested
p erson's office with a cover sheet conta ining the sender's name,
firm, address, telephone number, facsimile number, and the
number of pages transmitted. When delivery is made by facsimile,
a copy shall a lso be served by any other method permitted by this
rule. Facsimile delivery occurs when transmission is complete.
(c) Service by delivery after 4:00 p.m. shall be deemed to have
been made on the next day that is not a Saturday, Sunday, or legal
holiday.
IV.
INVENTORY
RULE 5.340
(a) Contents and Filing. Unless an inventory has been previously filed ,
the personal representative shall file an inventory of the estate within 60
days after issuance of letters. The inventory shall contain notice of the
beneficiaries' rights under subdivision (el, list the estate with reasonable
detail and include for each listed item (excluding real property appearing
to be protected homestead property) its estimated fair market value at
the date of the decedent's death. Real property appearing to be protected
homestead property shall be listed and so deSignated.
(d) Service. The personal representative shall serve a copy of the
inventory and all supplemental and amended inventories on the
Department of Revenue, the surviving spouse, each heir at law in an
intestate estate, each residuary beneficiary in a testate estate, and
any other interested person who may request it in writing. The persona l
representative shall file proof of such service.
(e) Information. On reasonable request in writing the personal
representative shall provide a benefiCiary with information to which the
b enefiCiary is entitled by law.
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Practice Pointers for the paralegal:
Inventory must be filed with the court 60 days from the date the Letters of Administration
are issued.
a. Prepare an Asset Li st and update as each value is computed
• Easy to know when you have all information needed to prepare Inventory
• Makes a good checklist to know when all assets have been administered
• Shows total s for estate assets and total gross assets for federal estate Tax
purposes (form 706)
• Use date of death values, but docket the six months from death date, and
remind the attorney to consider with to use the alternate valuation date.
This can be critical if the stock market has dropped significantly from the
date of death values.
• Will need to obtain appraisals where necessary to determine value
• Can have PR sign off for verification of no 706 filing requirement
b. Be sure to obtain and retain backup for all values computed
V.
HOMESTEAD ISSUES
Homestead has been characterized as "our legal chameleon" recognizing
that the Florida constitution deals with homestead and its protections in
three different ways. Snyder v. Davis, 699 So. 2d 995 (Fla. 1997)
The first deals with the homestead exemption from ad valorem taxes.
The second and third arise under article X, section 4 of Florida's
constitution which protects the homestead from forced sale by creditors
and which restricts a homestead owner from alienating or devising the
homestead if survived by spouse or minor children.
Article X, sec. 4 of the Florida Constitution, reads, in part, as follows:
(a) There shall be exempt from forced sale under process of
any court, and no jUdgment, decree, or execution shall be a
lien thereon, except for the payment of taxes and
assessments thereon, obligations contracted for the
purchase, improvement or repair thereof, or obligations
contracted for house, field or other labor performed on the
realty, the following property owned by a natural person:
(1) a homestead if located outside a municipality, to the
extent of one hundred sixty acres of contiguous land and
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improvements thereon ... or if located in a municipality, to
the extent of one-half acre of contiguous land, upon which
the exemption shall be limited to the residence of the owner
or the owner's family.
(b) These exemptions shall inure to the surviving spouse or
heirs oj the owner.
Typically, the decedent's residence which he or she owns will not be a
part of the probate estate nor will it be subject to claims of creditors
provided the decedent was survived by a spouse or if the residence passes to
the decedent's heirs.
In Clifton v. Clifton. 553 So.2d 192, 194 n. 3 (Fla. 5th DCA 1989)' the
court held that "[hlomestead property, whether devised or not, passes
outside of the probate estate. Personal representatives have no jurisdiction
over nor title to homestead, a nd it is not an asset of the testatory estate."
In the case of Public Health Trust of Dade County v. Lopez. 531 So.2d
946 (Fla. 1988), the court held that Article X, Section 4(b)'s exemption from
forced sale by creditors inured to the decedent's adult heirs. The court
reasoned that "[als a matter of public policy, the purpose of the homestead
exemption is to promote the stability and welfare of the state by securing to
the householder a home, so that the homeowner and his or her heirs may
live beyond the reach of finanCial misfortune and the demands of creditors
who have been given credit under such law. "
VI.
CREDITORS
All known and reasonably ascertainable creditors need to receive
actual notice in order to limit the time they have within which to file a
claim in the estate. All unknown creditors receive constructive notice
by virtue of a Notice to Creditors being published in a local newspaper
for two consecutive weeks.
Practice Pointer: It is embarrassing to have a creditor who was
thought to be barred, come in and prove they were reasonable
ascertainable. The creditor may show he or she received payments
from the decedent during the last year, so be sure to review the check
books for the last year, and account for all checks, particularly,
payments made each month to the same name. Look for auto
payments, too. Check all public records for mortgages, and anything
else that will give a clue.
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After receiving notice a creditor has 30 days from receiving notice or
three months after the time of the first publication date of the Notice
To Creditors, whichever is later, within which to file a claim against
the estate. If no claim is filed within that time peliod it is
unenforceable against the estate. If for some reason an estate wasn't
opened light after the decedent's death, the decedent's estate is not
liable for any claims asserted after two years from date of death
unless a claim was timely filed See: Flolida Statute 733.702 and
733.710.
RULE 5.241. NOTICE TO CREDITORS
(a)
Publication and Service. Unless creditors' claims are otherwise
barred by law, the personal representative shall promptly publish a
notice to creditors and serve a copy of the notice on all creditors of the
decedent who are reasonably ascertainable and, if required by law, on
the Agency for Health Care Administration. Service of the notice shall be
either by informal notice, or in the manner provided for service of formal
notice at the option of the personal representative. Service on one
creditor by a chosen m ethod shall not preclude service on another
creditor by another method.
Contents. The notice to creditors shall contain the name of the
decedent, the fil e number of the estate, the designation and address of
the court, the name and address of the personal representative and of
the personal representative's attorney, and the date of first publication of
the notice to creditors. The notice shall require all creditors to file all
claims against the estate with the court, within the time provided by law.
(b)
(cl
Method of Publication and Proof. Publication shall be made as
required by law. The personal representative shall file proof of
publication with the court within 45 days after the date of first
publication of the notice to creditors.
(d)
Statement Regarding Creditors. Within 4 months after the date
of the first publication of notice to creditors, the personal representative
shall file a velified statement that diligent search has b een mad e to
ascertain the name and address of each person having a claim against
the estate. The statement shall indicate the name and address of each
pe rson at that time known to the personal representative who has or may
have a claim against the estate and whether such person was served
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with the notice to creditors or otherwise received actual notice of the
information contained in the notice to creditors; provided that the
statement need not include persons who have filed a timely claim or who
were included in the personal representative's proof of claim.
(e) Service of Death Certificate. If service of the notice on the Agency
for Health Care Administration is required, it shall be accompanied by a
death certificate.
Practice Pointers for the paralegal: Administering potential claimants and
claims filed:
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VII.
Prepare and update Creditor & Claims Information CheckEst
Must send Notice to Creditors to Medicaid if Decedent was 55 or older
Must notify all reasonably ascertainable potential creditors
Check bank records to see what bills were being paid
Have mail forwarded to law office. Can monitor all bills that come in after
date of death
Notify credit bureau of decedent's death and request a list of all open
credit sources
Cancel all of the decedent's credit cards, drivers license and health
insurance to prevent fraudulent use of deceased 's name
PETITION FOR DISCHARGE AND FINAL ACCOUNTING
After all the assets have been marshaled. after all valid claims have been
paid, after all taxes have been paid and it's time to make final
distribution to the benefiCiaries, you do so by filing a Petition For
Discharge and a Final Accounting and serving these documents on the
remaining benefiCiaries by .
The two main parts of the Petition For Discharge contain a listing of all
compensation that has been paid or is anticipated to be paid to the
personal representative. the attorneys and any other professionals,
including appraisers. The other main informational part is a plan of
distribution.
The Petition For Discharge and Final Accounting must be served by
Formal Notice in order to prove beneficaires were served with the petition
in order to start the clock ticking for any benefiCiary to file an objection
to the Petition For Discharge or Final Accounting.
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Objections to be filed within 30 days of being served with the Petition For
Discharge.
Waiver of Notice In many instances in order to save time and costs,
beneficiaries will sign a waiver of being served but the
waiver has to be specific and affirmatively state that
the waiving party is aware of the fees being charged
and how they were calculated. Use the full waiver
form in Prodocs!
Practice Pointers for the paralegal:
At conclusion of the estate administration and after you have received the Order of
Discharge, it is a good idea to provide the Personal Representative with a Closing
Package that contains copies of all pertinent estate documents and let them know they can
dispose of any other documents they have retained.
Most PRs have kept every piece of paper and are totally overwhelmed. We have had
numerous positive responses by PRs about how relieved they are that the Closing
Package and our phone number is all they need to keep
Income Tax Information Preparation : Double check that all returns are filed!
a. Personal Representative is responsible for filing Decedent's final federal income
tax return (form I 040) and all applicable federal fiduciary income tax returns
(form 1041)
b. Complete Information for Tax Preparation form and give to Accountant preparing
return
c. Make sure due dates for tax return s are noted
Check the Inventory again, be sure all assets have been distributed, it is embarrassing to have
to reopen an estate to close an account, that was left open!
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VIII.
GUARDIANSHIP: Chapter 744
a. Selected issues
Criteria for establishment of Guardianship: a determination by the court
that the Alleged Incapacitated Person [AlP) is incapacitated, and that no
reasonable alternatives to a guardianship exist. F.S. 744.331. Read the entire
section. If your attorney is representing the Petitioner, be sure she or he
checks with the court appointed attorney with regard to whether the case will
be contested. If so, have the attorney consider "objecting" to the referral to the
General Magistrate. because of the delay which may occur if the other side files
an Objection to the Findings of the General Magistrate. This may cause
additional expense, and the delay can be prejudicial to the AlP, if there are
placement issues, or potential exploitation. To start a Guardianship, you will
need
Petition to Determine Incapacity
Petition for Appointment of Guardian
Oath of Guardian
Bond
Application of Guardian
All of which is to be submitted together, except the Bond , which may be posted
at the h earing, or after. The Court will generally prepare the Order
Determining Incapacity, Appointing Guardian and Guardianship Letters. If
you also need to file a Petition for Emergency Temporary Guardian, that
Petition must be accompanied by the above regular process.
Practice Pointer: Identify any advance directives. Make up two copies
for the hearing. These should include any trust, healthcare surrogate
designation, power of attorney and living will. The Court may require originals,
so have the original, plus the two copies, and have the attorney simply
substitute the copies for the original, for the court file.
Practice Pointer: If the guardianship is filed because of potential
exploitation by the very person who is deSignated under the Poa, the trust, etc.,
then put together an Affidavit, based on reasonable facts, supporting an
allegation that the instruments constituting a reasonable a lternative to a
guardianship are invalid, which if accepted by the court, will prevent the use of
those documents as a defense to the appOintment ofa guardian. 744.331 (6) (f)
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The Petition to Determine: F.S. 744.3201. The Clerk will serve the
copies on the interested persons. and have the sheriff serve the AlP. Do not
have your attorney agree to have another attorney accept service for the AlP. it
could well be a jurisdictional issue.
Practice Pointer: Consider filing "indigent" affidavit. to avoid fees. if the
AlP is indigent or you cannot access the AlP's accounts. If it turns out to be
non indigent. the guardianship must pay the all fees previously waived.
Practice Pointer: The attorney must be careful. if he or she is going to
represent the Petitioner. usually a family member. and the Guardian if the two
are not the same. A conflict may often arise later over money. visitation the
plan of residence. and other issues.
The Petition to Appoint Guardian: Be sure to complete the Guardianship
application. If the proposed Guardian has been in trouble. chances are she or
he will not be appointed. because it will be hard to obtain a bond. Consider a
professional Guardian.
Practice Pointer: Most problems for the court occur where the
Guardian is a non professional. Always have the attorney send a letter to the
client outlining the duties and obligations. Include a copy of the statute.
Highlight the keys provisions. Make a docket tickler. they will never remember.
and it is always the attorney's fault. if an extension must be filed.
The Adjudicatory Hearing - the reports of the Examining Committee are
generally admitted into evidence.
Practice Pointer: Have the opposing counsel stipulate in advance to the
admission of the Reports. If objectionable. subpoena the committee to the
hearing. See if opposing counsel will allow telephone testimony for committee.
Usually. the chairman of the committee. the M.D .. will be the one to use.
Practice Pointer: Do a matriX to show what rights are recommended
for removal by each member. as well as those rights to be retained.
The Initial Guardianship Report: Basically the inventory. F.S. 744.362.
This will be the place to determine the exact amount for bonding. If more or
less than the estimate at the hearing. then it is necessary to prepare a motion
to reduce or increase bond.
Practice Pointer: Bonds are expensive. Minor guardianship Bonds are
usually prepaid through the minority. The court will disapprove a report. if
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the bond is more or less than the assets shown on the Report. Consider
"freezing" the bank accounts, under F.S. 69.031.
Closing the Guardianship: The Notice provision for the final accounting
and Petition for Discharge is different that the regular notice provisions. See
Probate Rule: 5.680(d). You must use the prescribed form, for the Notice of
Filing Fina l Accounting and Petition for Discharge of Guardian.
Problem Areas: Failure to keep good records; providing the Ward
with cash, without a court order; failing to protect assets, be insurance is
current on personal and real property. Money may not be spent except as
specifically provided, no trips, no gifts, no vacations, without court orders.
Guardianship Litigation
Court Appointed Counsel- Are they good? What if private counsel
comes in?
Private Counsel- the AlP has the right to hire counsel. The AlP is
deemed competent, until a court adjudicates otherwise.
Right to Privacy- Not that easy to obtain medical records,
psychological records.
Marshaling of assets- Run a credit report. Check Tallahassee,
Dept of Unclaimed Property; Check public records, run a "people check" on the
internet;
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Date
Via Certified MaillRRR
#
Name of Beneficiary
Address I
Address 2
City, State Zip Code
Re: Estate of
Dear Mr.lMs. Beneficiary:
(Name of Decedent) passed away on (Date of Death). Under the terms of
(Name of Decedent)'s Last Will and Testament dated
, a copy of which is
enclosed, you were named as a beneficiary.
(Name of Decedent)'s Will has been admitted to Probate and (name of
Personal Representative) was appointed Personal Representative of her Estate on
(Date of Letters of Administration). This office has been retained by the Personal
Representative to assist in the timely administration of the Estate.
There are several timetables which we will be following throughout the
administration of (Name ofDecedent)'s estate and although in some instances they
may vary slightly from projections, we hope to stay as close to these time frames
as possible.
Inventory
Within sixty days following appointment, the Personal Representative is
required to file an inventory with the Probate Court, listing all of the property
owned by (Name of Decedent) in her sole name and their values as of her date of
death. We will provide you with a copy of the Inventory when it is filed.
Creditors' Claim Period
Pursuant to Florida law, a Notice of Administration must be served by
certified mail upon all beneficiaries. Any interested person upon whom the Notice
is served shall have three months after the date of service to file any objections that
person has challenging the validity of the Will, the qualifications of the Personal
Representative, or the venue or jurisdiction of the Court. A copy of the Notice of
Administration for (Name ofDecedent)'s Estate is enclosed, together with a
Waiver of Service of Notice of Administration, which I request you sign and
return to me in the enclosed envelope if you agree with the contents ofthe Notice
of Administration.
N arne of Beneficiary
Date of Letter
Page#.
Additionally, the Personal Representative must publish a Notice to
Creditors for two consecutive weeks advising any unknown creditors that they
have three months from the date ofthe first publication within which to file claims
against the Estate. The Personal Representative must also send the Notice to
Creditors to all known and reasonably ascertainable creditors, who also have three
months from the fist publication date or 30 days after the date of service of the
Notice (whichever is later) to file any claims they may have against the Estate or
be forever barred. The Notice to Creditors in (Name of Decedent)'s Estate was
published on October 9,2009.
The Personal Representative or any other interested person in the Estate
has one month after the expiration of the claims period within which to object to
any claim which may have been filed. Ordinarily, no estate assets are distributed
to any beneficiary until this period has expired.
Included in the creditors' claims is the Personal Representative's Proof of
Claim. This includes all of the debts of the decedent which the Personal
Representative has paid or intends to pay for which no claim has been filed or for
which an improper claim has been filed. The Proof of Claim of the Personal
Representative is done not only to give the beneficiaries an opportunity to object to
the payment of debts of the decedent, but in order to satisfY the requirements of the
Internal Revenue Service with respect to deductibility of the decedent's claims. A
copy of the Personal Representative's Proof of Claim being filed with the Court by
(Name of Personal Representative) is enclosed.
Payment of Claims
At the end of five months from the first publication of Notice to Creditors,
all unobjected to claims filed against the estate must be paid or the estate becomes
liable for the payment of interest. A claimant whose claim has been objected to
has thirty days within which to file an independent action to enforce the claim.
Objections must be filed with the court and a copy thereof mailed to the creditor
by certified or registered mail.
Estimated Closing of the Estate
Usually after all claims have been satisfied and adequate provisions made
for the payment of costs and expenses of administration, steps can be taken to
close the administration of the estate. As this estate will not be required to file a
federal estate tax return, we will not have to wait on a closing letter from the
Internal Revenue Service. Accordingly, I anticipate being able close the estate
approximately six to eight months from the issuance of the Letters of
Administration or as soon as the condominium is sold.
At the conclusion of the Estate administration, we will prepare a final
accounting and plan of final distribution for your review and approval.
{00171289.DOC;1 H00134081.DOC;1 I{00134081.DOC;!I{OO!3408I.DOC;!I{OO!34081.DOC;! )
Name of Beneficiary
Date of Letter
Page#.
Personal Representative's Commission
Under Florida law, a Personal Representative is entitled to compensation
pursuant to Florida Statute 733.617, a copy of which is enclosed.
Attorney's Fees
Under Florida law, the Attorney for the Personal Representative is entitled
to reasonable compensation, as set forth in Florida Statute 733.6171, a copy of
which is also enclosed.
Verification of Information Concerning Beneficiaries
To ensure our file is current and correct, I am enclosing a Beneficiary
Information Sheet, which I request you complete, sign, and return to me in the
envelope provided.
I hope this general review is of some help in understanding the procedures
and time frames involved in the administration of (Name of Decedent)'s Estate.
Please feel free to contact me or my Paralegal, (Name of Paralegal(, any time with
any questions you may have.
Very truly yours,
Name of Attorney
AAAlbb
Enclosures: as stated
cc: Personal Representative
{OO!7!289.DOC;! ){OO!3408I.DOC;! }{OO!3408I.DOC;! }{OO!3408I.DOC;! ){OO!3408I.DOC;!}
BaskinFleece
13577 Feather Sound Drive, Suite 550
Clearwater, Florida 33762
727.572.4545
www.baskinfleece.com
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