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Written by Thomas Upchurch
When a family member has passed away, it can be an emotional, stressful period of time. In addition to grieving, you may also need to help the decedent’s estate go through probate. The process of putting a will through probate, or, if there was no will, working with the probate court is complex and can take anywhere from months to years, depending on the size of the estate and any hurdles encountered along the way.
Under Florida law, you are required to hire an attorney to assist you with the probate process in most situations. An attorney is not legally required in the following situations:
Given the complexities of the probate process and the consequences, if it is not done correctly, it is strongly recommended that you hire an experienced probate attorney, even if it may not be legally required.
What follows are some of the top reasons individuals choose to hire a probate attorney.
Unfortunately, conflict between family members is all too common during the probate process. Beneficiaries argue over everything from money to personal property, with some going as far as threatening legal action. A probate attorney acts as a neutral third party and can help diffuse tensions between family members and come up with solutions to make all parties happy. In addition, having an attorney handle the estate can help avoid claims from family members down the line that the estate was not handled properly.
Florida law requires that all assets be transferred out of the name of the person who passed away. Doing so seems simple, but there are a lot of complex rules that need to be followed to transfer the assets. An experienced attorney will know how to meet the various specifications and will have all of the necessary forms the court will require throughout the process, many of which are hard to find and even harder to complete.
The probate process is not always quick, often taking months, even for simple estates. You cannot access the money and assets in the estate immediately, but having an experienced attorney helps the process move exponentially faster. Your attorney will have the necessary documents on hand and know how to fill them out in a way that the court will accept, meaning you can avoid your probate getting rejected and move smoothly and (relatively) quickly through the process.
If the will is unclear, or if there is no will, there may be questions about who is entitled to assets and what asset that person gets. For example, if you are a surviving spouse, you are entitled to certain things under the Florida Probate laws. An experienced attorney will be aware of those laws and will work with you to petition the court to determine the appropriate beneficiaries and get the assets distributed in an appropriate manner.
Frequently the decedent will owe a third-party, such as a credit card company or a hospital, money. These creditors are required to meet certain criteria to collect from the estate. Don’t pay any creditor claims without consulting with your attorney. They will help to evaluate the claims and ensure you are only paying the ones that you are required to pay under Florida law.
Whether you are the executor of the estate or a beneficiary, you may have concerns about the validity of the will that is being admitted to probate. At Upchurch Law, our attorneys have experience contesting the validity of wills for various reasons, including:
Florida does not have a requirement for when probate must be opened. Sometimes, probate attorneys handle estates years after individuals have passed away. While it is possible to wait to start the probate process, it is not recommended. The probate process becomes more complicated as time passes. Original beneficiaries may pass away or lose contact with the executor of the estate, making it harder to determine who the assets go to and effectuate the necessary transfers.
If you are the executor of an estate, or if a loved one passed away without a will, it’s wise to reach out to a probate attorney promptly. You may not have all of the documents that you need initially, but you can work with your attorney to gather the necessary documents. Some important documents that will need to be collected before your attorney can officially start the process include the death certificate, a copy of the will (if there is one), a list of assets that you have created using the best of your knowledge, and any information relating to bank accounts, 401(k)s, insurance policies, etc. More is better in these types of cases, so gather as much information as you can to bring to your attorney.
If the decedent has a smaller estate, you can use summary administration. Summary administration is a simplified probate process that helps to distribute smaller estates in a more efficient manner. Summary administration is available in Florida for estates that have both of the following:
Before agreeing to administer the estate with summary administration, you should reach out to your attorney. There are many circumstances where summary administration may not be the best option. For example, if some of the beneficiaries are minors or a beneficiary is uncooperative or uncontactable.
Probate attorneys are not only necessary when a loved one has passed away. A good portion of a probate attorney’s work is helping you and your loved ones create estate plans. An estate plan is a document (usually a will or a trust) in which you detail how your assets will be distributed after you pass away. In your estate plan, you can detail each beneficiary and what you would like that beneficiary to receive, including any special terms and conditions for that bequest.
Most estate plans also include provisions that detail how you would like your finances and property managed in the event that you become incapacitated and are unable to make those decisions yourself.
If you are thinking about putting an estate plan in place, it is important that you work with an experienced estate and probate attorney. Estate planning can be very complicated. There are many factors you’ll want to consider when creating your estate plan, including tax implications and distribution considerations, and your attorney will help walk you through the different options available to find what is best for you.
No two estate plans are the same, as everyone’s circumstances are different, and everyone has different preferences for how their estate is handled. An estate and probate attorney will work closely with you to create a custom plan that fits you and your family’s needs. While estate planning takes several customized forms, there are a couple of broad categories under which estate plans generally fall.
Wills are the most common document individuals use for estate planning. A will provides instructions to your family on how you want your assets to be distributed after your passing and nominates a person to manage that distribution.
For those with more robust estates or complex distribution wishes, a trust may be a more appropriate estate planning tool. Trusts have an extremely high degree of customization and can help larger estates avoid the probate process. However, due to the level of customization, trusts are more costly and time-consuming to set up.
Whether you choose a will-based or trust-based plan, there are a few other documents you should include, such as a medical directive and a financial power of attorney. These documents will provide your family with directions on how to manage your assets in the event that you are incapacitated.
Whether you are handling the estate of a loved one who has passed away or thinking about creating your own estate plan, don’t go at it alone. Thomas Upchurch is a seasoned attorney who has handled a wide variety of estate matters. The team at Upchurch Law is dedicated to providing you with skilled legal representation. We understand that administering an estate is an emotional process. Let our team handle the legal complexities of probate, so you and your family can focus on grieving.
Contact us today to set up a consultation and learn how we can make sure you and your family are taken care of.
Probate is the court supervised process in which a deceased person’s assets are transferred to the beneficiaries listed in his or her will.READ MORE