Posts

Overstreet Law, P.A., Is Pleased To Welcome Attorney Michelle Rivera To Our Practice

michelle-rivera-kissimmee-attorneyOverstreet Law, P.A., is pleased to welcome Attorney Michelle Rivera to our practice. Michelle brings with her a wealth of experience and knowledge in the areas of construction law and commercial litigation, as well as more than 7 years of experience in dealing with real estate, corporate documentation, licensing, trust amendments and related areas of law.

Michelle is a lifelong resident of Osceola County having graduated from Gateway High School shortly after it was built. She earned her Juris Doctor degree from Florida A&M University, College of Law, and holds a Bachelor of Arts in Legal Studies from the University of Central Florida where she graduated with honors.

In addition to her legal training and experience, Michelle has worked in acquisitions for a real estate developer and for the University of Central Florida. On a personal note, Michelle is an avid dog lover, presently serves on the Parent Involvement Committee for her child’s school and is active in her church community.

Please join us in welcoming Attorney Michelle Rivera to Overstreet Law, P.A. She will be a great addition to our team as we continue to serve the needs of our local Kissimmee, St. Cloud, Poinciana, Celebration and Hunters Creek communities.

/by
,

What Happens When Someone Dies Without A Will?

When someone dies without a will things can get complicated. Who is responsible for making decisions? How do you know who inherits which assets? When there is no will to name a personal representative or beneficiaries, it can be difficult for a family to know where to begin when it comes to handling their loved one’s property.

Fortunately, every state has laws that govern how property and assets of a deceased person, known as a decedent, will pass to their heirs when a decedent dies without a valid will. called intestate succession. Intestate succession laws provide guidance for determining beneficiaries of the decedent’s assets that would have been determined by the decedent’s will.

Under Florida law, the decedent’s estate in inherited according to a prescribed hierarchy of family members.

  • Spouses – If the decedent was married and had no children, grandchildren great-grandchildren, etc., called lineal descendants, the spouse inherits all of the decedent’s assets. The same is true if the decedent had lineal descendants whose living parent is also the surviving spouse of the decedent. 
  • Children – When the decedent has children whose living parent is not the surviving spouse, the assets are split between the decedent’s spouse and children: The surviving spouse inherits half, and the children divide the other half. 
  • Parents – In cases where the decedent has no surviving spouse or lineal descendants, the decedent’s parents are next to inherit the assets of the decedent.
  • Siblings – Finally, if the decedent had no surviving spouse, lineal descendants, or living parents, any surviving siblings would share the inheritance.

Intestate Succession Laws Cover Some, But Not All Cases

Assets that are jointly held (between spouses or with rights of survivorship), or held in a living trust will are not subject to intestate succession. Those assets move from the decedent to the joint spouse by operation of law, or from trust to the beneficiaries by a separate legal process.

Because intestate succession laws only recognize legal relatives, unmarried couples do not inherit their partner’s assets through intestate succession.

Probate May Be Required 

It is important to know that intestate succession does not automatically transfer the assets from the decedent to the heirs. The decedent’s estate may require probate in order to transfer the assets to their heirs. An experienced probate attorney can help you get through the legal process smoothly.

The probate lawyers at the Kissimmee Law Firm of Overstreet Law, P.A. are highly experienced in helping families through these challenging circumstances. Call us at 407-847-5151 for a confidential consultation, and we’ll tell you how we can help your family navigate the probate process smoothly.

/by

When Does a Property Transfer Require Probate In Florida?

Transferring property after the death of a loved one is one of the most common issues our probate attorneys manage. After a property owner dies, the heirs, trustee, or personal representative will need to properly document the transfer of property ownership from the deceased property owner (or “decedent”) to their beneficiaries.

How a Florida property title is transferred depends on the type of property ownership held by the decedent and whether or not there was a will. Oftentimes, the property will need to go through the probate process.

Transferring Property Without Probate

Probate can generally be avoided is the property is held in the name of a trust or if the property deed shows the decedent owned the property with another person, as joint tenants with rights of survivorship or tenants by the entirety.

  • Trusts. Trusts are similar to a will in that they can dictate to whom property is to be transferred upon the trust maker’s (or Grantor’s) death. If the property was held in the name of the trust, a named trustee has the power to transfer property in accordance with the terms of the trust.
  • Joint Ownership with Survivorship Rights. If the property was held by the decedent and another person, as joint tenants with rights of survivorship, title to the property automatically passes to the surviving owner. The surviving owner will have to record a death certificate with the county’s clerk of courts, but probate is not needed.
  • Tenancy by the Entirety. This form of joint ownership is limited to married couples. In tenants by the entirety, the property is owned by the married couple as a whole, not as individual owners. Therefore, when one spouse dies, property ownership passes to the surviving spouse automatically. When a married couple purchases a home, Florida law actually presumes that they intend to own property together unless they specify otherwise.

Transferring Property Through Probate

Probate is necessary when the property owner held title individually, or with another person as tenants in common.

  • Individual Ownership. If the decedent owned the property individually, it will likely have to go through the probate process to transfer ownership to the heirs or beneficiaries.
  • With a Will. If the decedent has a Will, property is generally transferred to the named beneficiary through the probate process. The Will names a personal representative who , after being appointed by the probate court, is given authority to transfer ownership of the property in accordance with the terms of the Will..
  • Without a Will. When someone dies without a Will, they leave behind an “intestate” estate. In these cases, a personal representative will be appointed by the probate court to transfer ownership of the decedent’s property in accordance with Florida law known as intestate succession. Intestate succession determines the heirs of the decedent’s property; typically the surviving spouse, children, and/or next of kin.
  • Tenants in Common. If the decedent owned property with another person, other than their spouse, it is presumed they are tenants in common. Tenants in common each own an equal share of the property. The Decedents share of the property would be transferred to their heirs or beneficiaries through the probate process.

Keep in mind that state law dictates how property can be transferred. If you aren’t a Florida resident, the requirements may be different.

Meet With A Probate Attorney To Review Property Status

If you are uncertain about how to transfer property in Florida after the death of a loved one, contact one of our probate attorneys for advice consultation. A probate attorney can review the situation and advise you as to whether or not probate is required and guide you through the process. It is better to take a proactive approach and verify the decedent’s ownership and properly transfer their interest to the heirs or beneficiaries before trying to sell or reside in the property since documentation of the ownership transfer may be necessary.

To learn more about the probate services at Overstreet Law, P.A, contact us at 407.847.5151.

/by

What Is The Role Of The Personal Representative In The Florida Probate Process?

When someone passes away they may leave behind property that becomes part of their “estate”. The estate goes through the probate process in Florida, where the judge will appoint a personal representative to oversee the administration of the estate. The personal representative can be an individual, a bank, or a trust company as long as they meet certain requirements.

In Florida, an individual can be a personal representative if they are:

  • Either a Florida resident or a spouse, sibling, parent, child or other close relative of the decedent,
  • Over 18 years of age,
  • Mentally and physically able to fulfill the duties, and
  • Free of felony convictions.

Trust companies, banks or savings and loan companies may be appointed to serve as the personal representative if they are incorporated under Florida Law and authorized to exercise fiduciary powers.

In other states, the personal representative may be known as an executor or administrator of the estate. Whichever term you use, the duties are the same: to administer the probate estate in accordance with state law.

Responsibilities Of The Personal Representative

The personal representative has many responsibilities throughout the Florida probate process. Their primary job is to settle the decedent’s estate. Major responsibilities include:

  • Identify and collect the decedent’s probate assets;
  • Identify and provide notice to creditors regarding decedent’s passing;
  • Pay claims filed against the estate;
  • Defend the estate against improper claims;
  • File and pay taxes;
  • Hire professionals for probate administration (attorneys, accountants, etc.);
  • Pay the expenses of administering the estate from estate funds;
  • Distribute assets to beneficiaries;
  • Close the estate

These are just some of the responsibilities that the personal representative will be asked to perform; there may be other duties, depending on the specifics of the estate.

Why Personal Representatives Need A Probate Attorney

In most cases, Florida law requires an attorney to represent the personal representative in the probate proceeding. Probate attorneys ensure the personal representatives handle the probate process correctly, file necessary documents in Probate court, and also help protect representatives from potential liability. For example, if a personal representative mismanages the probate estate, he or she can be held personally liable for any misconduct or errors. Probate attorneys can help representatives avoid personal liability while still meeting their obligations.

To learn more about the probate services at Overstreet Law, P.A, contact us at 407.847.5151.

/by