Home > Legal > Research Legal Advice > Probate > Does the family have to employ an attorney to file the paper work for a ...
-
Sign in with:
- Sign in
- Register
- Are you a Lawyer?
Does the family have to employ an attorney to file the paper work for a Summary of Administration?
Asked over 2 years ago - Saint Augustine, FL
My brother died in a terrible car accident. He did own land, that has been in the family for many years and no one is considering selling the land; The insurance company issued a check in the name of his estate.
My main concern is that he has five children(tow of them are over 18), and when we pay off all of his debit with this money there will be less than 30,000 dollars to split between the children. (social security is only giving each of the remainder children 181 dollars a month, A twelve year old, a 2years old and one a 1year old).
So any money we spend on the attorney is that much less that goes to raising the children.
So do we need to employ an attorney to file the Summary of Administration?
Thank you for all your advice.
Attorney answers (4)
Unlike Mr. Frederick who is not a Florida attorney and provided a meaningless and incorrect answer, I am an Florida attorney.
Your family will be required to hire an attorney to administer the estate. Please note that in order to qualify for summary administration the TOTAL VALUE of the estate subject to probate has to be less than $75,000 (or, the decedent has to have been dead for more than two years, regardless of the estate's value). The total value includes the value of the land your brother owned, if the land was subject to probate. The land will be subject to probate if he owned it in his own name, and not as joint tenants with right of survivorship with anyone else. Even if he owned an undivided interest as a tenant in common with other people, it will still be subject to probate.
Depending on the value of the land, that might raise the value of the estate to more than $75,000, requiring a full probate. Either way, you will be required to hire an attorney.
Your family will be required to hire an attorney to administer the estate. Please note that in order to qualify for summary administration the TOTAL VALUE of the estate subject to probate has to be less than $75,000 (or, the decedent has to have been dead for more than two years, regardless of the estate's value). The total value includes the value of the land your brother owned, if the land was subject to probate. The land will be subject to probate if he owned it in his own name, and not as joint tenants with right of survivorship with anyone else. Even if he owned an undivided interest as a tenant in common with other people, it will still be subject to probate.
Depending on the value of the land, that might raise the value of the estate to more than $75,000, requiring a full probate. Either way, you will be required to hire an attorney.
My condolences for your loss. Because of the assets you described, you will need to hire an attorney properly licensed in Florida to assist you and your family with this process. Ethical and responsible probate attorneys will charge a modest fee for walking through the technical legal steps and any attorney would be able to tell you with a fair degree of certainty what that attorney would charge.
The bottom line here is you and your family need time to grieve and work through the family issues, especially since he leaves behind minor children. Have a look through the probate lawyers in your area on AVVO and I'm certain you'll find someone who you will feel very comfortable helping you during this time.
The bottom line here is you and your family need time to grieve and work through the family issues, especially since he leaves behind minor children. Have a look through the probate lawyers in your area on AVVO and I'm certain you'll find someone who you will feel very comfortable helping you during this time.
Lawyers agree
Assuming your brother was a resident of the State of Florida, you should speak to an experienced probate attorney licensed in the state of Florida.
Because probate in this situation involves the rights of more than one person, it could be considered the unlicensed practice of law for one person to prepare the probate pleadings for everyone else. I realize that you are trying to help, but you should be very careful about this because the unlicensed practice of law is a felony in Florida.
A Summary Administration procedure requires either (1) that the decedent's property have a value of less than $75,000 or (2) the decedent passed away more than 2 years ago. If it has been less than 2 years, creditors that you don't know about can file a claim with the probate court, so many Florida attorneys advise against a summary administration procedure if it has been less than 2 years since the decedent died. Florida law provides that creditor claims (excluding certain claims under federal law - such as federal taxes) are barred if they are not filed with the probate court within 2 years. The Summary Administration process is not designed to handle creditors and creates a very difficult situation when creditors file a timely claim. There is an optional process to handle creditor claims in a summary administration procedure, but the extra work takes away the disadvantages of Summary Administration over the normal process, Formal Administration.
There are also many situations where an asset is discovered after Summary Administration and the asset can only be handled through Formal Administration. For example, some stocks owned in certificate form can only be transferred with the signature of someone apointed by the court to act on behalf of the estate. That does not happen in Summary Administration.
It also sounds like you have an issue because there are minor children inovlved. That means someone will probably have to be appointed as the guardian of their property.
If you speak with an experienced probate attorney in your area, I think you find that the fees for a Summary Administration procedure are much more reasonable than you might expect. If that procedure is the best option under the circumstances, having an experienced probate attorney to get it done right is well worth the cost.
My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.
Because probate in this situation involves the rights of more than one person, it could be considered the unlicensed practice of law for one person to prepare the probate pleadings for everyone else. I realize that you are trying to help, but you should be very careful about this because the unlicensed practice of law is a felony in Florida.
A Summary Administration procedure requires either (1) that the decedent's property have a value of less than $75,000 or (2) the decedent passed away more than 2 years ago. If it has been less than 2 years, creditors that you don't know about can file a claim with the probate court, so many Florida attorneys advise against a summary administration procedure if it has been less than 2 years since the decedent died. Florida law provides that creditor claims (excluding certain claims under federal law - such as federal taxes) are barred if they are not filed with the probate court within 2 years. The Summary Administration process is not designed to handle creditors and creates a very difficult situation when creditors file a timely claim. There is an optional process to handle creditor claims in a summary administration procedure, but the extra work takes away the disadvantages of Summary Administration over the normal process, Formal Administration.
There are also many situations where an asset is discovered after Summary Administration and the asset can only be handled through Formal Administration. For example, some stocks owned in certificate form can only be transferred with the signature of someone apointed by the court to act on behalf of the estate. That does not happen in Summary Administration.
It also sounds like you have an issue because there are minor children inovlved. That means someone will probably have to be appointed as the guardian of their property.
If you speak with an experienced probate attorney in your area, I think you find that the fees for a Summary Administration procedure are much more reasonable than you might expect. If that procedure is the best option under the circumstances, having an experienced probate attorney to get it done right is well worth the cost.
My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.
I agree with the Florida attorney answer. If the real estate was a Florida homestead-the value would not be counted towards the $75,000.
One or more answers have been taken down.
