Debunking Two Common Florida Probate Myths

Debunking Two Common Florida Probate Myths

People unfamiliar with Florida probate law can make some unfounded assumptions about what happens to debt and property after a family member dies. Here are two of the most common myths and the actual facts:

1. Debts After Death

If you are the beneficiary of someone’s estate, are you responsible for using some of the assets left to you to pay off any of their remaining debts?

It is not uncommon for debt collectors to try to collect on the debts of the deceased. However, you need to know that a beneficiary usually has no legal responsibility when it comes to repaying a deceased relative’s debts.

There are some exceptions to this – one of which is when a spouse co-signs a loan, they will be responsible for that debt upon the death of the other spouse. However, a debt collector has to go through the probate process to collect the debt. And since Florida is not a community property state, debts that were not incurred jointly belong only to the person who incurred them – when they die, any outstanding debts usually go uncollected. In addition, under Florida law, a married couple that has jointly held property is not liable for the debt if only one spouse signed for the loan.

2. Property Transference Upon Death

Many Florida residents believe – mistakenly – that they can leave their property to whomever they choose. However, if you are married or have children, Florida law places some restrictions on your right to transfer property.

Unless a surviving spouse’s homestead rights have been nullified by a premarital or post-marital agreement, a life estate passes to the surviving spouse, with the remainder going to any surviving children.

If a surviving spouse is bequeathed less than 30 percent of the estate, they can exercise elective share rights to claim 30 percent of the value of the estate. If you got married and did not change your will to include your spouse – and you are still married when you die – your surviving spouse is what is known as a “pretermitted” spouse, which entitles them to at least 50 percent of your estate, unless they were intentionally omitted.

If you have children from a prior marriage or relationship, then those surviving children receive the other half of the estate. If you and your surviving spouse had children together, then the pretermitted spouse also receives an additional $60,000.   If there were no children, the pretermitted spouse receives the entire estate.

To learn more about protecting your assets and the most effective strategies for passing them on to heirs, contact one of the experienced Florida probate attorneys at Jurado & Farshchian, P.L., at (305) 921-0440, or email us at info@jflawfirm.com.

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