What Does a Probate Attorney Do in Miami, Florida?

A probate attorney is a lawyer who guides personal representatives, beneficiaries, and other interested parties through the legal process of administering a deceased person's estate. In Florida, probate is a court-supervised process governed by the Florida Probate Code (Chapters 731–735 of the Florida Statutes), and it involves validating the decedent's will, identifying and collecting assets, paying debts and taxes, and distributing the remaining property to the rightful beneficiaries. A probate attorney handles the legal work required at each stage of this process and ensures that the estate is administered in compliance with Florida law.

At the Law Offices of Albert Goodwin, PA, we represent personal representatives, beneficiaries, and other parties in probate matters throughout Florida. Whether you have been named as a personal representative and need an attorney to help you administer the estate, or you are a beneficiary with concerns about how an estate is being handled, our probate attorneys can assist you.

The Role of a Probate Attorney in Florida

Under Florida law, the personal representative of an estate is generally required to be represented by an attorney unless the personal representative is the sole beneficiary of the estate. This requirement, established by F.S. § 733.212 and Florida court rules, reflects the complexity of the probate process and the importance of proper legal guidance. The probate attorney represents the personal representative in their fiduciary capacity and helps ensure that all statutory requirements are met throughout the administration.

A probate attorney's role is broad and encompasses virtually every aspect of estate administration. From the initial filing of the petition for administration to the final discharge of the personal representative, the probate attorney provides legal advice, prepares court filings, communicates with beneficiaries and creditors, and resolves disputes that may arise during the process.

Services a Probate Attorney Provides

The specific services a probate attorney provides depend on the nature and complexity of the estate, but the following are the most common areas of involvement.

Filing the Probate Petition

The probate process begins when the personal representative (or another interested person) files a petition for administration with the appropriate Florida circuit court. The probate attorney prepares this petition, along with the decedent's original will (if one exists), the death certificate, and other required documents. The attorney ensures that the petition meets all procedural requirements and that the proper court has jurisdiction over the estate.

Advising the Personal Representative on Their Duties

The personal representative is a fiduciary who owes duties of loyalty, care, and impartiality to the estate's beneficiaries. Many personal representatives are family members who have never served in a fiduciary capacity before and are unfamiliar with their legal obligations. The probate attorney advises the personal representative on their duties, including the duty to identify and collect assets, provide notice to beneficiaries and creditors, invest estate assets prudently, pay valid debts and expenses, file tax returns, and distribute assets according to the will or Florida's intestacy statutes.

Identifying and Collecting Estate Assets

A probate attorney helps the personal representative identify all assets that are part of the probate estate. This may involve reviewing financial records, contacting banks and financial institutions, obtaining appraisals of real property and personal property, and determining which assets are subject to probate and which pass outside of probate through beneficiary designations, joint ownership, or trust arrangements. The attorney also assists with transferring title to estate assets and securing property during the administration.

Handling Creditor Claims

Florida law requires the personal representative to publish a notice to creditors in a local newspaper and to serve known or reasonably ascertainable creditors with a copy of the notice. Creditors then have a limited time to file claims against the estate. The probate attorney manages this process, reviews creditor claims for validity, advises the personal representative on whether to pay, object to, or negotiate claims, and files objections with the court when appropriate. Properly handling creditor claims is essential to protecting the estate from improper charges and ensuring that beneficiaries receive their full inheritance.

Preparing and Filing Estate Tax Returns

Depending on the size and nature of the estate, the probate attorney may work with accountants and tax professionals to prepare and file the decedent's final income tax return, the estate's income tax return (Form 1041), and, if applicable, the federal estate tax return (Form 706). While Florida does not impose a separate state estate tax or inheritance tax, federal estate tax obligations may apply to larger estates, and income tax issues frequently arise during administration.

Preparing Accountings

The personal representative is required to provide an accounting of the estate's financial transactions to the beneficiaries and, in many cases, to the court. The probate attorney prepares these accountings, which must detail all assets collected, income earned, expenses paid, debts satisfied, and distributions made. A proper accounting protects the personal representative from future claims by beneficiaries and provides transparency to all interested parties.

Distributing Assets to Beneficiaries

Once all debts, taxes, and expenses have been paid, the probate attorney assists the personal representative in distributing the remaining estate assets to the beneficiaries in accordance with the will or Florida's intestacy statutes. This includes preparing deeds for real property, executing stock transfers, distributing cash and personal property, and obtaining receipts and releases from the beneficiaries. The attorney ensures that distributions are made in the correct amounts and to the correct persons, taking into account any specific bequests, per stirpes provisions, and other terms of the will.

Resolving Estate Disputes

Disputes frequently arise during probate, and a probate attorney is essential for resolving them. Common disputes include will contests (challenges to the validity of the will based on lack of capacity, undue influence, fraud, or improper execution), contested accountings, disputes over the interpretation of will or trust provisions, breach of fiduciary duty claims against the personal representative, and disagreements among beneficiaries about the distribution of assets. The probate attorney represents the personal representative or the beneficiary in these disputes and works toward a resolution through negotiation, mediation, or litigation.

Summary Administration

For smaller estates, Florida law provides a simplified probate process called summary administration. This expedited procedure is available when the value of the probate estate (less exempt property) does not exceed $75,000, or when the decedent has been dead for more than two years. A probate attorney can advise you on whether your estate qualifies for summary administration and can handle the streamlined filing process.

When Should You Hire a Probate Attorney?

You should consider hiring a probate attorney in any of the following situations:

• You have been named as personal representative. As noted above, Florida law generally requires a personal representative to be represented by an attorney. Even if you are the sole beneficiary and representation is not legally required, an attorney can help you avoid costly mistakes and complete the process efficiently.
• You are a beneficiary with concerns. If you believe the personal representative is not properly administering the estate, is not providing information you are entitled to, or is acting in their own self-interest rather than in the interests of the beneficiaries, a probate attorney can advise you on your rights and help you take action.
• There is a dispute. Will contests, disputes over asset distribution, claims of undue influence or fraud, and disagreements among family members all require experienced legal representation.
• The estate involves complex assets. Estates that include businesses, real property in multiple states (ancillary probate), significant investments, or unusual assets benefit from the guidance of an experienced probate attorney.
• There are significant debts or creditor issues. If the estate may be insolvent or faces substantial creditor claims, an attorney can help navigate the priority of claims and protect the estate.

How Much Does a Probate Attorney Cost in Florida?

Florida law provides a framework for attorney's fees in probate matters. Under F.S. § 733.6171, attorney's fees are considered a cost of estate administration and are paid from the estate's assets. The statute provides that reasonable attorney's fees are presumed to be:

• $1,500 for estates valued up to $40,000
• $2,250 for estates valued between $40,000 and $70,000
• $3,000 for estates valued between $70,000 and $100,000
• 3% of the estate value between $100,000 and $1 million
• 2.5% of the estate value between $1 million and $3 million
• 2% of the estate value between $3 million and $5 million
• 1.5% of the estate value between $5 million and $10 million
• 1% of the estate value above $10 million

These are presumptive fees and may be adjusted based on the complexity of the estate, the time and labor involved, and other factors. Additional fees may be appropriate when the probate involves litigation, contested matters, tax issues, or other extraordinary services. The attorney and personal representative should discuss the anticipated fees at the outset of the engagement so that there are no surprises during the administration.

Contact a Florida Probate Attorney

If you need a probate attorney to help with estate administration, a will contest, or any other probate matter, the Law Offices of Albert Goodwin, PA is here to help. We handle all aspects of Florida probate from our office at 121 Alhambra Plz #1000, Coral Gables, FL 33134. Call 786-522-1411 or email [email protected] to schedule a consultation and learn how we can assist you.