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My father passed away 3 years ago and is widow has not started the probate process. He did not have a will and I don't think she has made herself the executor of the estate. How do I find out what assets he may still have outstanding? And, as his daughter, can I be made executor to close those out?
Optional Information: State/Country relating to question: Florida Already Tried: Nothing yet. I was condiering doing an assets search.
Thanks for your question and good evening.I am the professional that will be helping you and providing you a full and complete answer.You certainly have the right here to consider a local lawyer to file for probate.If there is no known will the court may in fact appoint you personal representative of the estate.You may have to deal with the widow if she also seeks such appointment so a lawyer so a lawyer is a good idea.If you are appointed the personal representative you may subpoena records from the step mother.You may also be able to access bank records and order old tax returns as personal representative.It may take some detective work once you are appointed to locate assets.Your lawyer would work with you to locate the assets, pay claims, taxes, and other aspects of the estate process.The old returns would show any bank accounts, property, and other assets that they possessed at the time of death.Your lawyer would assist you in seeking such information so that you can then file an Inventory of assets and proceed to administer the estate and after completion distribute the assets.Reference to the probate process here in Florida.http://www.floridabar.org/tfb/tfbconsum.nsf/48e76203493b82ad852567090070c9b9/92f75229484644c985256b2f006c5a7a?opendocumentIf there is no will in Florida the estate passes through the laws of intestacy. Here are the laws of intestacy for reference.
732.101 Intestate estate. (1) Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in the following sections of this code. (2) The decedent's death is the event that vests the heirs' right to the decedent's intestate property. 732.102 Spouse's share of intestate estate. The intestate share of the surviving spouse is: (1) If there is no surviving descendant of the decedent, the entire intestate estate. (2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate. (3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate. (4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.
732.103 Share of other heirs. The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
(1) To the lineal descendants of the decedent.
(2) If there is no lineal descendant, to the decedent's father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:
(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent's great-grandparents were Holocaust victims as defined in 1s.(NNN) NNN-NNNN3)(b), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the lineal descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.
732.104 Inheritance per stirpes. Descent shall be per stirpes, whether to lineal descendants or to collateral heirs. 732.105 Half blood. When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half blood, those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts.
732.107 Escheat. (1) When a person dies leaving an estate without being survived by any person entitled to a part of it, that part shall escheat to the state.
(2) Property that escheats shall be sold as provided in the Florida Probate Rules and the proceeds paid to the Chief Financial Officer of the state and deposited in the State School Fund.
(3) At any time within 10 years after the payment to the Chief Financial Officer, a person claiming to be entitled to the proceeds may reopen the administration to assert entitlement to the proceeds. If no claim is timely asserted, the state's rights to the proceeds shall become absolute.
(4) The Department of Legal Affairs shall represent the state in all proceedings concerning escheated estates.
(5)(a) If a person entitled to the proceeds assigns the rights to receive payment to an attorney, Florida-certified public accountant, or private investigative agency which is duly licensed to do business in this state pursuant to a written agreement with that person, the Department of Financial Services is authorized to make distribution in accordance with the assignment. (b) Payments made to an attorney, Florida-certified public accountant, or private investigative agency shall be promptly deposited into a trust or escrow account which is regularly maintained by the attorney, Florida-certified public accountant, or private investigative agency in a financial institution authorized to accept such deposits and located in this state. (c) Distribution by the attorney, Florida-certified public accountant, or private investigative agency to the person entitled to the proceeds shall be made within 10 days following final credit of the deposit into the trust or escrow account at the financial institution, unless a party to the agreement protests the distribution in writing before it is made. (d) The department shall not be civilly or criminally liable for any proceeds distributed pursuant to this subsection, provided such distribution is made in good faith.
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This is really helpful - thank you.
I'm concerned about hiring a lawyer without knowing if there are assets to be recovered - if the cost of a lawyer is higher than what I recover, it may not be worth it.
Is there any way to determine assets before hand? A credit check? Assets search?
That can be really tricky since the stepmother holds all the financial information.If you suspect he has real property then you can check the county deed records.You might want to consider a lawyer to write the step mom seeking information both about assets and also about whether there is a will or not.This amounts to an asset search on your behalf.There may well be some assets and certainly your step mother may be concealing them from you as well as your legal share of them fro either a will or the laws of intestacy.You would have an interest as a step child if there is no will and the laws of intestacy come into play.Alternatively if there is a will you might be an Heir.A letter might get you some information and then you decide whether to pursue this from that point on. A letter here from a lawyer is a pretty inexpensive way to at least do some investigation and go from there.I wish you good luck here.And I am sorry for your loss even if has been awhile I am sure it is still real to you.
Experience: Texas lawyer for 29 years in Estate law