Administering The Estate
The probate process is full of complex and formal procedures. A minor omission on a court filing, failure to send a distant relative a necessary copy of a notice or petition, or missing a simple deadline, has the potential to cause the entire administration toderail and expose the parties to unnecessary delay, expense, risk and liability.
The emotional time surrounding the death of a loved one can bring out the very worst in some people. Experience shows that even in close families there is a tendency to get overly emotional and start taking things personally about relatively trivial and non-monetary matters at the time of a loved one’s death, such as who gets photo albums and who gets the old dented family kettle. Such minor matters can, pose issues of perceived unfairness, create unfounded suspicion and discord among family members and cause unnecessary expense and delays, all further exacerbating an already difficult and emotional time. Thus, it is prudent to have a neutral third party handle the probate administration and to “let a lawyer do it”. Furthermore, Florida Law requires that the administrator of an estate be represented by a lawyer during the probate process in all but a few specific instances.
Estate Settlement Issues
Some of the many possible issues and complexities that may arise in the administrative process, that often overwhelm family members after the loss of a loved one, include: admitting a Will to probate; discovering that your loved one died without a Will or without a Will valid under the laws of the State of Florida; dealing with social security benefits, pension plan benefits, veterans benefits, and insurance benefits; understanding the legal implications of jointly owned property, community property and the many different variations of beneficiary designations; claims of dependants and creditors; attorney and court fees; and, income and estate taxes. In addition, the legal wording and terminology used during the probate process are unfamiliar to most and add another layer of confusion and stress to an already stressful time..
The following guide is not intended to be a substitute or to provide any legal, advice, as many aspects of each individual probate Will vary considerably. Accordingly, if specific or even general questions arise regarding the probate process, consultation with a competent legal professional is strongly recommended. While it is important and necessary to take care of the many requirements of probate efficiently, it is usually more important to ensure that all the legal requirements are taken care of correctly and in a legally appropriate manner, than it is to do so as quickly as possible. By ensuring that the probate process is handled correctly under Florida law, rather than as quickly as possible, more time can be spent on healing during the grieving process, which leads toless frustration, expense and stress due to errors and potential liability..
Locate as many of the originals of the following documents as possible: Wills, deeds, bank books, stock certificates, military discharge papers, social insurance card, tax forms, vehicle and boat titles, insurance policies, etc.
The first step of the probate process Will be to obtain certified copies of the death certificate. You can order them from the funeral director or directly from the Registrar of Vital Statistics in your area. Best practice would be to order multiple copies along with a few more than what you think you Will need. Many state agencies Will only accept certified death certificates and not photocopies.
Probate is the process that transfers legal title of property from the estate of the person who has died (the decedent) to their named beneficiaries if the decedent had a Will (testate) or pursuant to Florida Statutes if it is determined the decedent died without a Will or without a valid Will under the laws of the State of Florida (intestate). A Will is a very personal document, and may reveal private family and financial issues and concerns. Once it is entered into the court record, it becomes public, and can be inspected by anyone.
The primary steps of the probate process include a determination of beneficiaries for the decedent, homestead, exempt property, and even proving the existence of a valid Will.
Probate is generally considered a lengthy and time consuming affair and generally can take a minimum of 9 months from start to finish. The minimum time period does not include delays due to incorrect filings, Will contests, the pace of the court, stubborn beneficiaries, unknown creditors and many other possible delays. During this process, assets of the decedent are frozen and cannot be distributed without court order.
Probate is my no means considered an inexpensive or quick process. Because Florida courts oversee the estate administration process, probate has the potential to go on for years.. In addition, an appointed personal representative (also known as an executor) is entitled to fees from the decedent’s estate for carrying out the administration of the estate. Furthermore, as stated above, the personal representative Will be required to hire a lawyer except in few specific instances. The lawyer hired by the personal representative may charge a flat fee, percentage, or an hourly rate, to handle the administration of the estate. The lawyer’s fees and court costs can vary depending on the complexity of the estate and can rise if problems such as a Will contest or litigation arise.
Frequently Asked Questions
Do I need a Will?
It is recommended that everyone over the age of 18 have a Will. Regardless of the size and nature of your estate, a property drafted and executed Will is an essential part of any estate plan. Your Will directs who Will receive your assets, which assets they inherit, and, in many cases, when and how they should inherit those assets. Dying intestate, or without the benefit of a Will, leaves Florida Statutes to determine who inherits your estate pursuant to a specific formula fixed by law, which might be contrary to one’s wishes. Dying intestate can also create unwanted tax consequences, additional expenses, hardships, and time delays.
I already have a Will from a state other than Florida. Is my out-of-state Will valid?
It is recommended that you have your existing estate plan reviewed by a Florida attorney to determine the validity of your out-of-state Will. Any Florida resident's Last Will and Testament Will be probated here in Florida, and Florida laws Will determine the Will's meaning and validity, regardless of whether it was prepared in different state.
A review with an attorney can help determine whether your nominated Personal Representative (executor) Will qualify to serve in Florida or whether a secondary probate may be required in another state. Further, even if your out-of-state Will is technically valid in Florida, a Florida attorney can determine whether that Will is going to create additional administrative expenses and headaches for your loved ones by virtue of having provisions inconsistent or contrary to Florida law. When reviewing your estate plan with a Florida attorney, you may wish to discuss other topics such as avoiding probate, minimizing estate taxes, or planning for illness or incapacity.
Am I required to leave an estranged child one dollar?
No. Under Florida law, you are not required to include children in your Will if that is your wish. Leaving a child one dollar is not necessary and can actually add additional expense and delays to your estate administration. Rather than leave a child one dollar, it is better to simply state in your Will that you intentionally make no provision for that child.
Does my Will avoid probate?
No. Wills do not avoid probate. In fact, your Will is your written instructions to the probate court as to how you wish for your estate to be administered and ultimately distributed.
Do Wills increase probate expenses?
No. Wills do not increase the cost of probate. A carefully drawn Will often reduces probate expenses because it names beneficiaries and sets forth procedures intended to simplify administration. Intestate administrations (no valid Will) increase probate expense and lengthen the entire probate process.
Do all assets go through probate?
No. Only assets owned in your individual name require probate. Assets owned jointly as "tenants by the entirety" with your spouse avoid probate and pass directly to the surviving spouse without probate. Also, assets such as life insurance, IRAs and annuities pass directly to the named beneficiaries outside of probate.
If my Will goes to probate, does the State of Florida take some or all of my assets?
Your estate Will "escheat" to the State of Florida only in the rare event that your Will is invalid and if you have absolutely no family who survives vou. Otherwise, after expenses of administration, your net estate assets Will pass to the named beneficiaries of your Will; or, in the event you do not have a Will, to the intestate beneficiaries, as determined under Florida Law.
Why Is Probate Necessary?
The primary function of probate is paying all of the decedent’s creditors and transferring title of the decedent’s property to their heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate. Probate also provides a court forum to hear disputes such as Will contests and ownership disputes.
The probate process also provides a mechanism for setting a deadline for dependents and creates a timeframe for the distribution of the remainder of the estate’s property to ones’ rightful heirs.
What Is Involved In Administering An Estate?
Your executor has many duties including:
- Identifying and cataloguing all property owned by the deceased.
- Appraising the property, and paying all debts and taxes.
- Proving that the Will is valid and legal, and
- Distributing the property to the heirs as the Will instructs.
Should I Plan To Avoid Probate?
Depending on the complexity of your estate, Probate can be expensive and lengthy to complete the administration of the estate. A Revocable Trust can be a useful tool to help avoid probate. Whether to spend your time, money and effort planning to avoid probate depends on a number of factors, most notably your age, your health, and your wealth. A simple Will may be all you need - adopting a complex probate avoidance plan now may be overkill and overly expensive and Will require future amendments and updates as your life situation changes. A consultation with a Florida Estate Planning Attorney can determine which option is the best fit for your personal circumstances.
On the other hand, if you’re older (say, over 50), in ill health, or own a significant amount of property, it may be wise to engage in some probate avoidance planning. Probate saving strategies can be complex and may require a lawyer to ensure your property is distributed the way you want, and to avoid income tax issues.