Heir Rights (FL)Show Table of Contents
As an heir, you likely have questions about the inheritance process, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In Florida, small estates can bypass probate via disposition without administration, or simplify it via summary administration.
Disposition without Administration
If a Florida estate contains very little that would have to go through probate, you can request that the court allow the estate to be settled without any probate administration at all (see FL Statutes § 735.301).
To use this approach, an estate can contain nothing besides:
- Exempt Personal Property
- An Exempt Homestead
- Other assets exempt from creditor claims, such as life insurance payable to a named beneficiary, IRAs and 401Ks, etc. (see FL Statutes § 222)
- Non-exempt assets that do not exceed funeral expenses and reasonable and necessary medical expenses for the last 60 days of life
To settle an estate without administration,
- Submit an Affidavit of Disposition of Personal Property without Administration to the court (see below)
- Once the court approves the form, you can use it to collect estate assets from their current custodians
- Settle the estate in the normal manner: resolve any estate obligations and distribute remaining assets to heirs
You can use the Affidavit of Disposition of Personal Property without Administration Form, or ask your local court if they have a preferred form.
You will need to attach:
- Any mandatory county checklist (see Broward County checklist for example)
- Certified copy of the death certificate
- Copy of the will (if any)
- List of assets and debts
A summary administration is a bit more work, but it's still much simpler than a full probate process (see FL Statutes §§ 735.201-2063).
A Florida estate can qualify for summary administration if:
- its net value is < $75,000,
- or >2 years have passed since the decedent's death
When calculating net estate value,
- Add gross asset values and subtract debts
- Exclude assets that would not be subject to probate in any case, such as 401Ks with named beneficiaries, life insurance policies, community property with right of survivorship, etc. (see Standard Probate Exclusions).
- Exclude any Exempt Personal Property
- Exclude any Exempt Homestead
Regardless of estate value, you can still apply for summary administration if no official probate has begun and more than 2 years have passed since the death. After 2 years, all debts have expired, so presumably the situation will be relatively simple (and if it isn't, your request will not be granted).
A person nominated as executor in the will, or any heir, can file a petition for summary administration if the above requirements have been met.
The petition must be signed and verified by any surviving spouse, and you should attach a copy of the will (if any), a certified copy of the death certificate, a list of known assets and debts, and a copy of your ID.
Formal notice of the petition must be served on any heir who hasn't signed the petition, and the petition must include the signature of any heir who would not receive the full amount specified in the will.
File the petition with the Circuit Court that has jurisdiction over the estate, and include a copy of the will, if any, with the petition.
Once you have filed a petition, you must make a diligent search for any known or reasonably known creditors and make provisions for paying those creditors from estate assets.
You must serve formal notice of your petition to those creditors, giving them 3 months to make any objections known to the court. See Finding Debts for more details, and note that all of this is moot once 2 years pass from the decedent's death (unless the creditor has already initiated court proceedings by then).
After the creditor notice period has expired, you should update the list of estate assets and debts you originally submitted to include any new information, along with a plan for satisfying all known debts.
Once the court grants your petition, the assets are legally transferred to the heirs and creditors in accordance with your submitted plan.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any FL Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
In turn, estate debts have priority over most distributions, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
No Affidavit of Collection
In many states, small estates can use an Affidavit of Collection or Small Estate Affidavit to obtain possession of estate property without court involvement. Since many people ask about this, we explicitly note that Florida does not support such a process; you must go through the courts one way or another.
Finally, note that as an heir, you are NOT responsible for paying the debts of the estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
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