Probate and You: Why Hiring an Attorney is a Smart Choice
We’ve all seen the movies. The wealthy patriarch dies, and the grieving family comes together for the reading of the will. Only to learn that they have each been left out of the will and the entire estate has been left to the housekeeper! Dramatic? Yes. Unrealistic. No.
There is one pivotal character missing from all those movies who could have upended the dramatic plot using the power of a pen. The smart and experienced Probate Attorney would have entered the scene, counseled the wealthy patriarch, and properly documented the disposition of all property upon death. Just as dramatic, but with a much less frightful ending!
What is Probate?
Probate can be boiled down to a key phrase – the proving of a will. When a will exists and a personal representative is appointed within the document, the probate process is clear and the path relatively easy to “prove” based on the directions of the decedent. If there is no written will at the time of death, the process is less clear and could take some time to work its way through the court system.
Probate is a court process that begins with a filing in the Circuit Court having jurisdiction over the estate. Also called “estate administration,” this is the process to transfer assets owned by a deceased person to their beneficiaries. If the person who passed away had a valid will, it will direct who is in charge of the probate process and how the estate will be divided. If there is no will, the Florida Statutes determine how the property will be divided.
Two Types of Probate
- Summary Administration
- Formal Administration
What is Summary Administration?
As the name suggests, Summary Administration is less involved than Formal Administration. It is also faster and cheaper, making it more favorable to be used whenever circumstances allow. If an estate has less than $75,000 in non-exempt assets or the decedent passed away more than two years ago, it will likely qualify for Summary Administration.
Benefits of Summary Administration
- More simple than Formal Administration
- Costs less money
Summary Administration starts with a petition filed with the court. All interested parties are provided with notice of the proceedings and given a set time in which to respond. When the court is satisfied that all parties have been notified and the court has received all required pleadings, a legal document is issued to officially transfer the property of the decedent. This is called an “Order of Summary Administration.”
What is Formal Probate Administration?
Formal Administration is more involved than the Summary Administration process. Any estate with non-exempt assets in excess of $75,000 at the time a decedent dies less than two years prior to filing requires Formal Administration. This process also requires a personal representative to be appointed by the court to represent the estate.
What is a Personal Representative?
A personal representative is responsible for overseeing the legal transfer of the decedent’s assets to the beneficiaries. If the decedent had a will, it states the preference of who will serve as the personal representative. If no will is presented to the court, Florida Statute 733.301 outlines the preference in appointment of a personal representative in both testate and intestate estates.
Testate: died with a legitimate will in place
Intestate: died without a legitimate will in place
What Does a Personal Representative Do?
A personal representative is not appointed impulsively by a testator (the person writing the will) or without the knowledge of the individual selected. The individual selected as personal representative must file a Petition for Administration with the court having jurisdiction over the estate. They also take an oath to lawfully administer the estate when they are given “Letters of Administration” granting power over the estate.
Duties of a Personal Representative
- Serve “Notice of Administration” on interested parties
- Take inventory of estate assets
- Open safe deposit box (if needed)
- Secure property of the decedent
- Serve notice to creditors
- Litigate on behalf of the estate
- File taxes
- Distribute assets
- Close the estate
The personal representative has a great deal of responsibility to the estate and its heirs. For that reason, other than in the case of family, the judge can require the personal representative to obtain a surety bond to insure against negligence in their fiduciary obligations. Once the administration has been completed, the court will discharge the personal representative and bar any legal action against them, individually as well as in their capacity as representative, and the surety bond.
What Assets Must Go Through Probate in Florida?
Any asset owned by the individual who has died is subject to probate in Florida unless it already has a named beneficiary or rights of survivorship apply. If the property does not have a named beneficiary or rights of survivorship, it is subject to the probate process to change ownership. Bank accounts and property deeds should be reviewed by a knowledgeable Probate Attorney.
Examples of Property for Probate
- Bank accounts
- Real estate
- Personal property
Property purchased and owned by both husband and wife typically has rights of survivorship in Florida. That specific language may not appear on the deed to the property but is called “tenancy by the entirety.” When the title is held by both husband and wife, the title will automatically transfer to the surviving spouse upon death.
Real Estate and Probate
Real estate property can take a very specific path depending on how the deed is titled. In the case of a married couple, if only the husband or the wife is one the title and the one not on the title survives the other, probate will usually be required. In the case of Life Estate Deeds or Lady Bird Deeds, these have their own special language recognized in law and are able to avoid probate.
Property titled in a trust usually avoids probate. Proper entitlement of deeds is one way to not only avoid probate but bypass the stress that comes along with the process. A Probate Attorney is invaluable for peace of mind about the property they will inherit in the future.
How Long Does Probate Take?
With an uncontested Summary Administration case, probate can take around eight weeks to complete. Comparatively, Formal administration can take 4-6 weeks just to appoint the personal representative. This type of estate can remain open for around one year, but this varies depending on what needs to be accomplished by the personal representative in order to close the estate.
Timelines can be affected for a variety of reasons. One common reason is the beneficiaries arguing about how the estate should be handled. Probate Litigation is an option, but hopefully, the parties can agree on the most important aspects of the probate case to allow it to move forward.
Important Aspects of Probate Case
- Personal representative
- Validity of the will
- Assets have been apportioned fairly by personal representative
Can I Avoid Probate with a Trust?
Avoid probate by placing your assets in a trust that automatically transfers to your chosen successor trustee upon death. This essential part of estate planning allows you to protect assets for your heirs and maintain control of your assets after your death or incapacity. Within the trust document, you will direct how your property will be divided and support your family when they need it most.
How Do I Avoid Probate in Florida?
With advanced planning and a solid aging plan, you can avoid a lengthy Probate in Florida. Consult with a knowledgeable Estate Planning Attorney to determine which tools make the most sense for your situation. Avoiding probate means avoiding costly expenses that can drain the financial legacy and good intentions of the person who died.
Ways to Avoid Probate
- Designate “Pay on Death” beneficiaries on financial accounts
- Lady Bird Deeds/Rights of Survivorship
- Trust-Based Estate Plans
Nothing replaces the knowledge and experience of a reputable Probate Attorney. Let experts navigate your legal options and develop the best estate plan for your situation. You will find invaluable peace of mind in protecting your family’s future with guidance and support in the moments they need you most.
Our Estate Planning Attorneys are ready to help you secure your family’s future. Contact Lacey Lyons Rezanka for expert advice on Estate Planning, Probate, and Trust Administration. Our goal is to provide exceptional legal services with a client-centered approach to successfully serve our clients and our community.
This blog post was written by our Guest Writer, Kara Anderson, from Simplifying Senior Living. To find out more about Kara, click here.