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Written by Thomas Upchurch
Whether you’re planning for the distribution of your assets after death, managing the estate of a deceased loved one, or just inheriting property, it’s important to know what to expect.
Unfortunately, probate can be mysterious. That’s partly because television and movies tend to dramatize the process, injecting both ceremony and pitfalls that don’t match up with real life. It’s also because complex legal processes are often misunderstood, leading well-intentioned friends and family to provide misinformation about their own experiences, what the law says, and how your probate matter is likely to unfold.
Some of the things “everybody knows” about probate and estates are even contradictory, such as the popular beliefs that you don’t need a will because your family will automatically get everything and the competing theory that the state gets all your property if you die without a will. Similarly, many heirs believe they are personally responsible for the deceased’s debts, while others believe that debts die with the debtor.
The best source of accurate information about estates and the probate process is an experienced local Florida estate planning and probate attorney. This look inside some of the most popular myths offers a head start on untangling fact from fiction, and will help you prepare to take the next steps.
The will is the centerpiece of many estate plans and a long-standing estate planning tool, so it’s no surprise that this document gets a lot of attention in the legal folklore. Here are a few of the most common myths surrounding wills:
Writing a will certainly makes estate administration easier and provides clarity for your heirs. Not only does a properly drafted will provide instructions for distribution of assets and payment of debts, but the document also designates the person who will manage the probate process. A will, however, isn’t a substitute for probate. In fact, the first step in proper administration of most estates is submitting the will to probate.
This helps to ensure that the will is valid, that distributions are made as the deceased intended, and that all valid debts, taxes and other obligations are paid.
While the testator has a great degree of freedom in making decisions about how his or her property is distributed after death, that power is not unlimited. For example, a married person cannot effectively exclude his or her spouse from inheriting. If the surviving spouse receives less than 30% of the estate under the terms of the will, he or she can opt for an “elective share,” overriding the wishes of the deceased.
In hopes of minimizing family conflict after death, some people choose to include a “no contest” provision in their wills. These clauses discourage will contests by providing that anyone who challenges the will and loses will receive nothing. However, the state of Florida does not recognize or enforce no-contest clauses. This type of language in a Florida will is simply ignored.
While most people know they should have a will or other provision for passing property and resolving debts after they pass away, many are unprepared. Studies conducted by Gallup in 2016 and Caring.com in 2017 revealed that less than half of U.S. adults have wills. According to the Gallup report, the percentage of Americans with wills has declined steadily over the past two decades.
However, many of those without wills have serious misconceptions about what it may mean for the future of their assets, including:
It’s not impossible for property to pass to the state when a person dies without a will, but it’s extremely rare. The state’s laws of intestate succession provide for distribution to the deceased’s surviving family members through a complex hierarchy that can ultimately reach any living relative.
With no will, property may well pass to someone other than those the deceased would have chosen. But, for most people, there is little concern that the property will pass to the state.
The law of intestate succession does provide for certain family members when a person dies without a will, but that doesn’t mean the property will be distributed as the deceased would have intended, nor in the way that best provides for the family.
For example, it’s common to assume that the surviving spouse will inherit everything if there is no will. While that’s true under some circumstances, distribution plays out quite differently when there are children not of the marriage.
Often, the realities of estate administration come as a surprise—and not just to those waiting to receive distributions from the estate. Many personal representatives enter the process with no prior knowledge of the probate and estate administration process. The estate attorney representing the personal representative can provide the necessary information and guidance, but it’s useful to have a general idea of what to expect in advance.
Here are some of the most common misconceptions about the estate administration process:
There is no hard and fast timeline for the administration of an estate, and in some cases the process does take more than a year. However, many estates are wrapped up in a matter of months, and it is rare for an estate to stay open for significantly more than one year. Estate administration may be delayed by unusual elements such as will contests and other estate litigation or large and complex property holdings that must be valued and liquidated.
The eldest child of the deceased is often named executor, but there’s no requirement or even default selection. The testator may choose any qualified person to serve as executor, and Florida law provides very few restrictions on who may serve.
When a person dies without a will or the named personal representative is unwilling or unable to serve, the court will appoint someone to manage administration of the estate. That person certainly may be the deceased’s eldest child, but there is no presumption or preference in favor of appointing that particular person.
The cost of estate administration depends in large part on the complexity of the estate. When there is estate litigation, for example, administration becomes more costly and the value of the estate may be significantly diminished. Typically, however, costs of administration amount to just a small percentage of the total value of the estate. And, for small estates, Florida provides a simplified “summary administration” process to save time and money.
Most debts survive the death of the debtor and become debts of the estate. If there are sufficient assets in the estate to pay those debts, creditors are entitled to payment. Payment of debts takes priority over bequests under the will, so beneficiaries may be impacted by these debts. However, it is important to distinguish between this type of impact and personal liability.
While some creditors will attempt to persuade heirs and other family members to pay outstanding debts of the deceased, there is generally no obligation to do so. There are exceptions, such as when a family member has co-signed for a loan and so is directly liable for the debt. However, in most situations, debts are paid out of the proceeds of the estate and, if the estate lacks sufficient funds to pay the debt, the debt remains unpaid.
Theoretically, this one is true. If the deceased owned no property directly and everything was titled to a living trust, then there would be no estate property and probate could be avoided. As a practical matter, though, there is usually some property that passes outside the trust, triggering the need for probate.
Ensuring that your property is distributed according to your wishes after your death requires both strategic planning and careful drafting of estate planning documents. Leaving disposition to chance can create a significant burden for loved ones, and even trigger conflict among family members during a difficult time. An experienced local estate lawyer can be the best source of both information and assistance in crafting an effective will, living trust, and other documents.
Similarly, a veteran probate attorney can be your best resource if you’re charged with administering a loved one’s estate, or you are a beneficiary who has concerns about the validity of the will, the competence of the personal representative, the integrity of the administration, or some other aspect of the probate process. Gather the information you need as early in the process as possible, so you can move forward with confidence, meet any applicable deadlines, and take any necessary steps to protect the value of the estate.