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Jason Edward Havens

Jason Havens’s Answers

2 total

  • How do we execute an estate without putting it into probate.

    Here is the problem my mother passed suddenly and had been living in her trailer on our property, her brother whom she was the caregiver for contiues to live there. My mother owed more than she was worth and had no will, my uncle is now claiming e...

    Jason’s Answer

    You should consult a lawyer licensed in Indiana who focuses on -- and ideally is board-certified in -- estate planning and administration. In Florida, our homestead law would potentially protect the trailer, although even our homestead exemption from creditors' claims -- one of the strongest in the country -- generally would not protect against valid claims of the Internal Revenue Service, as those would "trump" the state's creditor exemption laws. I have no idea whether Indiana has a similar exemption. Even so, the same result might apply. It is, however, possible to negotiate with the Service. They are typically much more reasonable than most folks perceive. A competent lawyer would be able to guide your family through that process. I would suggest contacting your local bar association and probably the Indiana Bar Association. If you cannot find someone to help, try a legal aid service or even a clinic at a nearby law school (Notre Dame being not too far from you, although I am not sure if they would handle this type of case).

    Also, your question needs to be rephrased a bit. I think that you are asking how to administer or "probate" the estate -- not execute it. When lawyers refer to execution, they usually mean signing some type of legal document(s). My previous posting regarding probate administration in Florida might be helpful for your general reference, although again you would need to consult someone in your own state (jurisdiction) to assist with your particular situation.

    I hope that this helps. As with any of these postings, this is merely general information and not intended as legal advice in any way. You should always consult a competent lawyer regarding your own situation. Also remember that law is just as or more specialized than any other profession, which means that all lawyers are not alike and you should proceed with caution if a lawyer claims to offer legal services in areas such as criminal defense, real estate, and estate planning and administration!

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  • Does an estate have to go through Probate?

    My moms estate is less than $75,000.00 Does it have to go through Probate? And if so can I file paperwork with the courts without an attorney?

    Jason’s Answer

    That is unfortunately not a simple question, even though it might seem so. As you might be aware, Florida has two types of probate administration: summary (abbreviated) administration and formal administration. Summary administration is generally available if the estate's assets are valued at less than $75,000 or if more than two years have elapsed since the decedent's date of death. See FLA. STAT. section 735.201 et seq. (available here: http://www.flsenate.gov/statutes/).

    There are several nuances to summary administration that should be noted here. First, the "cap" in terms of value does not include non-probate assets or assets that are considered exempt from creditors' claims, the most significant one of which is Florida homestead property. Therefore, even if the estate's assets include a $3 million homestead, it can still qualify for summary administration. Second, there is no cap on the value of an estate if more than two years have passed since the decedent's death. This exception relies on Florida's two year statute of non-claim (known as a "statute of repose" -- similar to a statute of limitations, but generally even stronger in barring claims after the applicable period ends). Third, if the estate is "testate," meaning there is a will that governs the probate administration and disposition of the estate's assets, and it requires formal probate administration (which is relatively rare), then you generally may not use summary administration. The final item to note is that sometimes you should consider formal administration even if summary probate administration is available. For example, if an actual personal representative (or letters of administration, which in other states are known as "letters testamentary) is needed to process non-probate benefits, such as life insurance claims or retirement account settlements, then summary administration might not work as well because there is no personal representative appointed in a Florida summary administration -- only a petition and an order from the court confirming that the assets should pass as specified in the order.

    For better or worse, you must engage a Florida lawyer to file either type of probate case in Florida. The only other "type" of probate, which is not truly so, is an application to the court for "disposition of personal property without administration." That filing does not require a lawyer. However, if you have assets other than personal property, you cannot simply use that application to deal with those other assets. There are other aspects of this filing that are explained in the Florida Probate Code. See FLA. STAT. section 735.301 (available via link above).

    There are numerous resources online that would provide more information than my general summary here. For example, The Florida Bar's excellent "Probate in Florida" consumer pamphlet gives you a superb introduction to this topic. Just search for "Florida Bar probate" (no quotation marks necessary), and you should find it. I would post a link, but our Bar's website links are often very lengthy due to the design of the site. Following is a shortcut, however, that I just created for your use: http://tinyurl.com/probateFlaBar. I hope that this helps you.

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