Law Offices of Samantha J. Fitzgerald, P.A.

The Order of Discharge, which discharges the personal representative from his/her responsibilities, is what closes the estate. The personal representative will be discharged when the estate is fully administered, which means that all assets were collected, all valid claims were paid (assuming there were sufficient estate assets), all required tax returns have been filed and distributions have been made to beneficiaries. The length of an estate varies from case to case, but an average estate typically takes about 12 months to administer from the time our firm is hired.

All beneficiary distributions are made after the creditor period ends and before the Discharge Order is signed by the Judge. The exact timing of beneficiary distributions depends on the facts specific to each case.

The retainer you advanced can be reimbursed to you once estate funds are accessible. The final invoice can be paid after the creditor period ends and before the Petition for Discharge is filed with the court.

A Federal Tax Identification Number, also known as an "E.I.N." or "Tax I.D.", all refer to the nine-digit number issued by the Internal Revenue Service (IRS). We will help you get the EIN.

Most of them, but not regular cash accounts or retirement accounts (401(k)’s, IRA’s, etc). Retirement accounts are taxable as ordinary income (not capital gains tax) because the decedent obtained a tax deduction upon contribution.

The fair market value as of the date of death allows for a step-up in basis (tax stuff that your CPA will want to know and will help you with). A step-up in basis is the readjustment of the cost basis of an appreciated asset for tax purposes upon inheritance. The asset receives a step-up in basis so that the beneficiary's capital gains tax is minimized.

For financial accounts you can call the institution holding the asset and provide them with the date of the decedent’s death and ask for the value of the asset on that date. For real estate, you should either get a certified appraisal, or you might be able to use a more informal valuation (such as Zillow or an opinion from a realtor).

The date of death value is the fair market value of an asset on the date of the decedent’s death.

Yes, if the estate generates income in excess of $600 then an estate income tax return, Federal Form 1041, is required to be filed. 1041 Returns are due by the fifteenth day of the fourth month after the close of the estate's tax year. A fiscal year can be elected (which may be beneficial for the estate beneficiaries, so this should be discussed with your CPA).

The Letters of Administration (also referred to by some as Letters Testamentary) is the document signed by the Judge, which gives the Personal Representative his/her authority to administer the decedent’s estate. You will frequently be asked to show the Letters of Administration during the probate process. It will take approximately a month (depending on the County and judge) to receive the Letters of Administration from the time we file the case with the court.

Florida does not have an estate or inheritance tax, so the bulk of the assets received will not be taxable. However, some assets are taxable, such as the receipt of retirement benefits, or some portion of annuities, etc.

Some simple ways to find assets would be going through the decedent's mail looking for bank statements, contacting the decedent's employer for direct deposit information. If everything was on the decedent's computer, you can hire someone to do computer forensics. In some cases, you can hire a professional search firm to do an asset search.

Possibly. If the decedent’s income was under the federal filing requirement, then most likely no. You can find these filing thresholds on the IRS website: https://www.irs.gov/help/ita/do-i-need-to-file-a-tax-return Even if the decedent’s income was under the filing threshold a return may need to be filed to claim a refund. The decedent may also have an obligation to file one or more state income tax returns depending on his/her assets. Our office does not prepare income tax returns but we can help you assess what might need to be filed and we can refer you to a CPA if needed.

You can list the real estate for sale at any time during the probate process, but you will not be able to close on the sale until the Judge has signed the required Order(s). Make sure that the realtor is aware the property owner is deceased.

Look through their files and paperwork. Look through their mail. If you have access to their check register, bank statements, credit card statements or online accounts, look for any evidence of debt payments. Do a public records search in the county of residence for liens, judgements, dissolution of marriage, mortgages. You can also request a credit report.

The estate is responsible for paying the decedent’s debts (which we routinely refer to as "creditors"), however, there is a very specific process for doing this, so you should not pay anything without speaking to us first. As personal representative you have an obligation to make a "diligent search" for any possible debts. During the probate process we will ask you about these debts. Then we do two things: 1) we will send a notification to the creditors that you make us aware of, and 2) we publish a creditor notice in the newspaper. The "creditor period" is open for 3 months from the time of the newspaper publication. During the creditor period, creditors must submit their claims to the court. If they fail to submit a claim during this time, then the debt does not have to be paid. Sometimes you may decide to pay certain debts without notifying the creditor. This process also has a very specific procedure to be followed, so before you pay anything please discus with us.

Whether you plan to sell or keep the real estate, you should keep the water and electricity on. Cable, phone and similar non-essential type of utilities can be turned off, but any charges incurred up to the time of shut-off should be paid. If you have a situation that may be unique, please call us to discuss. Some expenses, such as mortgage payments, association dues and other time sensitive expenses, may need to be advanced by a relative that can afford to do so. Please discuss this with our office.

Most financial institutions will only provide specific information to the personal representative or to a beneficiary that is specifically named on an account. However, banks will usually answer yes or no questions. To find out if a beneficiary is listed for an account you can ask "Does this account need to go through probate?" To find out the value of the funds in a bank account you can ask "Is the amount in the account below $75,000?"

When someone passes away, one good place to look for information regarding assets, debts and loose ends that may need to be addressed is their mail. One of the first steps you should take is to forward the decedent’s mail to your address. This can be done online at moversguide.usps.com, but you will have to pretend you are the decedent (and they are alive). If that’s not appropriate under the circumstances, then you will have to fill out a change of address card and deliver it to the post office nearest to the decedent’s residence.

It is a common misconception that revocable trusts save estate taxes. All assets which the decedent had an interest in at death are subject to the federal estate tax. However, there are ways to draft your trust to minimize the effect of estate and income taxes. Children or loved ones with disabilities may need to have a special needs trust, which may prevent the reduction of government benefits such as Medicaid or SSI.

During the grantor’s lifetime, there are usually no federal income taxes for a revocable trust. The trust will use your social security number as its tax identification number, which will report the income and deductions directly on your individual income tax return. Once a revocable trust does not report income under your social security number, it will become a separate entity for federal income tax purposes. If this happens, the trustee must file an annual fiduciary income tax return. The terms of the trust will determine who is responsible for paying income tax on the trust income.

The person who carries out the terms of the trust and manages the trust assets is known as the "trustee." You can serve as the initial trustee, or you can appoint another person, bank, or trust company to do this for you. Upon your death, the trustee (or your successor if you served as trustee) is responsible for paying certain claims and taxes, and then distributing the assets to your beneficiaries according to the terms of the trust agreement.

The personal representative, also known as the executor, is appointed by the courts to oversee the probate process of the decedent. It is their duty to gather the decedent’s assets, pay creditors, and distribute the property amongst the heirs/beneficiaries. Among other duties, the personal representative must notify any ‘known or reasonably ascertainable’ creditors of the probate proceeding. Once this has been sent, creditors will have three months to file a claim with the probate court.

All assets are subject to probate unless they name a designated beneficiary (such as POD or TOD accounts), are jointly owned with rights of survivorship or are titled in a trust. Assets that pass outside of probate are not controlled by a will or Florida’s intestate statutes.

When someone dies without a valid will, assets will pass to the decedent’s heirs – this is called dying "intestate." The decedent’s "heirs" are the persons who are related to the decedent and described in the Florida intestate statutes. A misconception exists that probate is necessary when a decedent dies without a will. This is simply untrue. Probate is necessary when a decedent dies owning assets that require the court to transfer its title.

A revocable trust, also commonly referred to as a living trust or trust agreement, is a document that explains how your assets should be managed during your lifetime and after your death. The creator of this document, which is usually you, is known as the "grantor" or "settlor." The trust is "revocable" because you may modify or terminate the trust agreement at any time during your lifetime, provided you are not incapacitated. "Irrevocable" trusts are sometimes used, but for very specific purposes. Revocable trusts are more common for traditional estate planning.

A last will and testament (commonly referred to as a "will") is a document signed by the decedent, witnesses, and a notary that meets the requirements of Florida law. In a will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets, however, there are restrictions on disinheriting a spouse. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate. If a decedent has a valid will (referred to as dying "testate"), the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, then Florida law dictates who inherits and who has preference to serve as personal representative. A will is also used to nominate guardians for your minor children.

It is difficult to discuss, but if you die, who will get your assets? If you have minor children, who will raise them? Do you want your children to get all of your money when they turn 18, or do you want to set aside money for college, or for when they are able to be wiser with their inheritance? If you are incapacitated by an accident, what medical treatment do you want, or not want? Who can pay your bills if you are incapacitated? An estate plan is critical to ensure that you can make these important decisions before the courts decide for you.

You are entitled to receive a copy of the Will if you are a named beneficiary, but not necessarily before the probate starts. It depends on the particular circumstances of the case.