Mourning the death of a loved one is an emotionally challenging time for the surviving family members of the deceased. While the family is grieving, the finances and estate affairs of the deceased often gets neglected. Soon after family members will ask whether the decedent had a Last Will, who is the named Personal Representative to manage estate affairs and who are the beneficiaries that will inherit the estate assets. If there was no Will, in order to preserve family harmony, the surviving family members will need to work together to identify the best choice of Personal Representative and determine who are the beneficiaries of the estate.
If surviving family members communicate well, they may agree on the choice of Personal Representative and estate counsel to administer the estate and effect timely distribution of decedent’s assets to named beneficiaries. When surviving family members are unable or unwilling to communicate or cooperate with each other, the process of probate administration becomes exponentially more expensive, time consuming and difficult. In some cases, if disputes arise between beneficiaries or if beneficiaries become estranged, the estate adminstration becomes adversarial and may require beneficiaries to retain independent counsel separate and apart from estate counsel that represents the Personal Representative.
For this reason, involving a probate and estate administration attorney early on in the probate process is the best way to mitigate potential beneficiary misunderstandings and disagreements. While advising the Personal Representative, estate counsel can communicate with beneficiaries as soon as possible after the decedent’s date of death to quell the spread of misinformation that often happens between family members during probate. They will also ensure that the estate administration process moves quickly and stays on track without issue or interruption.
While the Florida probate rules are designed to make sure the Personal Representative, by and through estate counsel, corresponds regularly with the beneficiaries, beneficiaries often do not receive adequate communication from their Personal Representative during the estate administration process. Beneficiaries can easily be left in the dark without any understanding of their rights and privileges during probate under the Florida Statutes. In order for an estate beneficiary properly advised of their legal rights, protections and privileges, they may want to retain independent estate counsel to review the status of the probate, advise them of their legal rights as beneficiaries and review and assess the performance of the Personal Representative on behalf of the beneficiaries.
Who Is an Estate Beneficiary?
A “beneficiary” under Florida law is any person named in the Will of the decedent or with a legal right to receive a share of property from decedent’s estate pursuant to Will provisions. An “heir” on the other hand is a person with legal claim to inherit a share of property from decedent’s estate by way of the Florida laws of intestacy which controls the terms for inheritance when decedent dies without a valid Will. Although ‘beneficiary’ and ‘heir’ are terms that are used interchangeably (both are called beneficiaries by statutory definition), heirs should be thought of as lineal descendants or ascendants of the decedent (or blood relatives thereof) while beneficiaries named in decedent’s Last Will may include persons not related to the decedent.
While a Personal Representative is obligated to obtain the consent or otherwise serve notice on estate beneficiaries throughout the estate administration, this does not always happen in a timely fashion or at all in some cases. Many times beneficiaries are poorly communicated with or not communicated with at all by the Personal Representative or their counsel. If a person believes they have a claim to inheritance or are a beneficiary that is being wronged or not communicated with, they should hire a probate attorney to file a notice of appearance in the probate proceeding and identify themselves as being represented by counsel. This is especially important if a beneficiary wants to enforce certain legal rights available to them during the estate administration or initiate litigation involving the decedent’s Last Will or Trust which requires legal standing to bring those actions.
If I am an Estate Beneficiary, What Rights Do I Have Under Florida Law?
Florida law requires estate beneficiaries to be informed and notified throughout the estate administration process. At a minimum, the Personal Representative should notify estate beneficiaries when the estate adminstration proceeding has started and when the Personal Representative is seeking court appointment to act on behalf of the estate. Beneficiaries are also required to be informed of any inventory stating the nature and value of decedent’s probate assets, as well as, of any litigation involving probate assets.
If someone believes they are an estate beneficiary in a probate or trust adminstration proceeding whom has not been properly notified nor informed of their legal rights, they should contact Florida probate and estate counsel to review thier legal rights under the law including:
RIGHT TO SECURE COPY OF WILL
Each beneficiary has the right to request a true copy of the decedent’s Will. If a beneficiary is a minor, his or her natural or legal guardian can request a copy of the Will. If decedent’s Will “pours over” into a family trust and the trustee of the trust and personal representative of the Will are the same person, the beneficiaries of the trust are also entitled to receive a copy of the Will. See Fla. Stat. §732.901 and Fla. Stat. §736.0813(1)(b) and (c)
RIGHT TO PETITION TO DETERMINE BENEFICIARIES
Each beneficiary or interested person has a right to petition the court to determine who are the beneficiaries of an estate if it unclear or there is doubt as to who the beneficiaries when property passes by Will or intestate succession. See Fla. Stat. §733.105(1)(a)
RIGHT TO PETITION TO DETERMINE BENEFICIAL INTEREST AMOUNT
Each beneficiary or interested person has a right to petition the court to determine what their share of inheritance should be if the anticipated distribution from the estate is unclear or there is a dispute over the nature, share or amount that beneficiaries of the estate are entitled to receive. See Fla. Stat. §733.105(1)(b)
RIGHT TO PETITION TO REVOKE THE PROBATE OF A WILL
Each beneficiary of a Will (or prior Will as the case may be) has a right to petition the court to commence a proceeding to revoke the deposited Will from being probated. See Fla. Stat. §733.109
RIGHT TO NOTICE OF PROBATE ADMINISTRATION
Once a Personal Representative has been appointed by the court, if not waived, each beneficiary has right to promptly receive a copy of Notice of Administration announcing the formal commencement of the estate administration, appointment of the Personal Representative and notice of the right to challenge the validity of the will, venue, or jurisdiction of the estate administration proceeding. See Fla. Stat. §733.212
RIGHT TO CHALLENGE THE VALIDITY OF A MARRIAGE AFTER DEATH PROCURED THROUGH FRAUD, DURESS OR UNDUE INFLUENCE
Any beneficiary of the estate has the right to petition the court to dispute a surviving spouse’s legal status and estate benefits that inure by way of marriage to the decedent with evidence that surviving spouse procured marriage to the decedent by fraud, duress, or undue influence. See Fla. Stat. §732.805
RIGHT TO PETITION TO REMOVE AND REPLACE A PERSONAL REPRESENTATIVE
Each beneficiary has a right to petition the court to remove and replace the Personal Representative if a beneficiary believes it is legitimate and necessary, e.g. to preserve, protect and avoid waste of estate property. See Fla. Stat. §733.504 and Fla. Stat. §733.506
RIGHT TO OBJECT TO CREDITOR CLAIMS
Each beneficiary or interested person can file a written objection to a creditor’s claim made during te estate administration. See Fla. Stat. §733.705(4)
RIGHT TO ENTER INTO A PRIVATE AGREEMENT AMONGST BENEFICIARIES
The beneficiaries of the estate have the right to petition the court or otherwise enter into an agreement to alter interests, shares, or amounts entitled to beneficiaries under the Will or pursuant to intestacy statutes. See Fla. Stat. §733.815
RIGHT TO FORMAL NOTICE AND DECLARE ADVERSARIAL PROCEEDINGS
If a claimant files a lawsuit against the estate, each beneficiary has a right to receive formal notice of that lawsuit. See Fla. Prob. R. 5.025(b)(3)
RIGHT TO RECEIVE THE ESTATE INVENTORY
Each beneficiary has a right to receive the filed Inventory of estate assets or otherwise compel the Personal Representative to file an Inventory if they have not done so already. A beneficiary is also entitled to receive from the Personal Representative a written explanation of how inventory values are determined and to receive a copy of any appraisal valuing estate property. See Fla. Prob. R. 5.340 and Fla. Stat §733.604
RIGHT TO REQUEST, OBJECT TO AND COMPEL AN ACCOUNTING OF ESTATE ASSETS
If not otherwise waived, a beneficiary has a right to receive an accounting of estate assets from the Personal Representative. This may include a review inventory values and a statement of all transactions involving the estate assets. A beneficiary can also object to an accounting or otherwise compel the Personal Representative to file an accounting if they have not done so. See Fla. Prob. R. 5.150 and Fla. Prob. R. 5.345
RIGHT TO OPENING, VIEWING AND REMOVAL OF SAFE DEPOSIT BOX CONTENTS
If the estate includes a safe deposit box, a beneficiary can request the box be opened, viewed and accounted for and, in some circumstances, removed and delivered pertinent third parties. See Fla. Prob. R. 5.342
RIGHT TO REQUEST INTERIM DISTRIBUTION OF ESTATE ASSETS
A beneficiary may petition the court to request a partial early distribution of estate assets from beneficiary’s share of inheritance to the extent property is not required to pay estate debts, taxes or expenses of administration and so long as the creditors period has expired. See Fla. Prob. R. 5.380 and Fla. Stat. §733.612(26)
RIGHT TO OBJECT TO DISCHARGE OR FINAL ACCOUNTING OF PERSONAL REPRESENTATIVE
Any beneficiary may object to the petition for discharge or final accounting of the Personal Representative within 30 days after the service of the later of the petition or final accounting on that interested person. See Fla. Prob R. 5.401
RIGHT TO UNIFORM PARTITION OR CO-TENANT BUYOUT OF ESTATE HEIRS’ PROPERTY
If two or more beneficiaries are entitled to distribution of undivided interests in estate property including real property, the Personal Representative or any beneficiary may petition the court before the estate is closed to partition the property in the same manner as provided by law for civil. See Fla. Stat. §733.814 and Fla. Stat. Title VI, Chapter 64
RIGHT TO PETITION FOR DETERMINATION OF HOMESTEAD STATUS OF REAL PROPERTY/EXEMPT PROPERTY
A beneficiary may petition to have real property of the decedent declared protected homestead property and may also seek to declare certain property as exempt property under the probate rules. See Fla. Prob. R. 5.405 and Fla. Prob. R. 5.406
RIGHT TO PETITION FOR EXEMPT PROPERTY
A beneficiary may also petition to determine that certain property is exempt property in accordance with article X, section 4 of the Florida Constitution and Fla. Stat. §732.402. See Fla. Prob. R. 5.406
RIGHT TO PETITION FOR FAMILY ALLOWANCE
A beneficiary may also petition to award a family allowance payment up to $18,000.00 and other statutory entitlements paid to the surviving spouse for the use of the spouse and dependent decedent’s lineal heirs. See Fla. Stat. §732.403 and Fla. Stat. R. 5.407
RIGHT TO PETITION FOR ESTABLISHMENT AND PROBATE OF LOST OR DESTROYED WILL
Any beneficiary or interested person may establish the terms of a lost or destroyed Will and offer the lost Will for probate. The specific content of the lost Will must be proved by the testimony of two disinterested witnesses, or, if a correct copy of lost Will is provided, it must be proved by one disinterested witness. See Fla. Stat. §733.207 and Fla. Prob. R. 5.510
RIGHT TO PETITION TO INCREASE OR DECREASE PERSONAL REPRESENTATIVE COMPENSATION
Each beneficiary has the right to petition for an increase or decrease in the Personal Representative’s compensation for ordinary services or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. See Fla .Stat. §733.617
If I am a Trust Beneficiary, What Rights Do I Have Under Florida Law?
A beneficiary under Florida trust law refers to the entire universe of persons with a claim to beneficial interest in a trust. This also includes any person with a beneficial interest in or power of appointment over trust assets other than as trustee.
A qualified beneficiary under Florida trust law includes a smaller class of personal including the current or remainder beneficiaries of the trust whether vested or contingent. Because it is the duty of the trustee of the trust to administer the trust in good faith and solely in the interests of the trust beneficiaries, the trustees can’t do thier job as trustee if they don’t know the qualified beneficiaries are.
If you believe you are a qualified beneficiary of trust whom has not been properly notified nor informed of your legal rights, contact Florida probate and estate attorney to review your rights including the:
RIGHT TO NOTICE OF TRUSTEE ACCEPTANCE
Each trust beneficiary has the right to receive notice creation of the irrevocable trust and the trustee’s acceptance to serve the trust along with other certain information including the name and address of the trustee. Fla. Stat. §736.0813(1)(a)
RIGHT TO COPY OF TRUST AGREEMENT
Each trust beneficiary has a right to receive a complete copy of the trust document upon request. Fla. Stat. §736.0813(1)(c)
RIGHT TO ANNUAL ACCOUNTING OF TRUST ASSETS
Right to receive an annual accounting and relevant information about the trust assets and liabilities when the trust become irrevocable. See Fla. Stat. §736.0813(1)(d) and (e)
