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Written by Thomas Upchurch
For most people who haven’t been through the process, “probate” is a vague concept that sounds a bit intimidating. It’s true that the Florida probate process can be complex, but it’s designed to protect the wishes of the deceased and the rights of beneficiaries. In short, probate helps ensure that loose ends are tied up, debts are paid, and property is transferred to the right people and organizations.
This guide will provide the basic information you need to understand how probate works, when an estate must pass through probate, and what to expect in the process. We’ll also look at what happens when disputes arise in probate. If it still seems a bit daunting, don’t worry. You’ll be working closely with a Florida probate attorney to wrap up the estate.
Probate originally meant the legal determination of the validity of a will. Now, however, the term is used to describe the legal procedure in which the probate court oversees the process of inventorying assets, paying debts of the deceased, and distributing assets to heirs and beneficiaries.
Not all assets of the deceased pass through probate. For example, a retirement account that has a listed beneficiary is not an asset of the estate, and will pass directly to the beneficiary. The same is true for property that is held jointly with rights of survivorship. However, any other property owned by the deceased at the time of his or her death becomes property of the estate.
Many people view probate as an unnecessary hoop to jump through, but it actually serves some important purposes. First, most people don’t neatly wrap up all of their affairs before they die. That means there are debts to be paid, final tax returns to be filed, and other formalities. Through the probate process, a personal representative is granted legal authority to attend to those matters.
The same is true for the transfer of assets. When the sole owner of property passes away, no one has the legal right to transfer that property. So, a legal process is required to transfer title to vehicles, real estate and other property.
In addition, probate helps to avoid conflicts and oversights, since the personal representative must submit an inventory and an accounting to the court. This helps ensure that the required notices are provided, debts and costs of administration are paid, distribution of property follows the terms of the will or intestate succession, and nothing is left hanging.
How property is distributed in probate depends on whether the deceased left a valid will. If a valid will is submitted to probate, property is distributed according to the terms of the will. However, if the deceased died intestate–without a will–then any property in the estate will be distributed according to the Florida law of intestate succession. While intestate succession law is designed to ensure that close family is protected when someone dies without a will, it doesn’t work well for everyone.
For example, many people assume that a surviving spouse will inherit everything if there is no will, but that isn’t always true–if one or both partners has separate children, the estate may be split. Another problem with intestate succession is that it makes no provision for people the deceased may have considered family and provided for during his or her lifetime, such as a long-time unmarried partner or a stepchild. So, it’s best to be proactive in estate planning, even if you are relatively young and healthy.
Early in the probate process, the court appoints a personal representative to administer the estate. If the deceased left a will, this person will usually have been designated in the will. If there is no will, no personal representative was designated, or the named personal representative is unable or unwilling to serve, the court may appoint a personal representative.
While the personal representative is usually a close relative or other trusted person close to the deceased, a bank or trust company may also serve as personal representative.
The personal representative conducts estate business with the assistance of a probate attorney and the oversight of the probate court.
The first step toward opening the probate process is for the custodian of the will to deposit the original will with the clerk of the court. The person who deposits the will won’t necessarily be the personal representative or the person who initiates probate. The probate case is opened by filing a Petition for Administration and paying a filing fee.
There is a Summary Administration process available for some estates with less than $75,000 in assets. That process is simplified, and will not require all of the steps in the Formal Administration process described below. Under extremely limited circumstances, the person who paid the deceased’s final expenses may apply for disposition of personal property without administration. This is an even simpler process, but is available in a very small percentage of cases meeting specific criteria.
The steps for formal administration include:
How long probate takes depends on a variety of factors, including the size and complexity of the estate and whether there are challenges to the will or other probate litigation issues. A simple estate can often be resolved in as little as six months. But, formal administration of a more complex estate will typically take a year or more.
Because of the time and cost involved in the probate process, many people ask how they can avoid probate. While a simplified process is available for some smaller estates, the only way to entirely avoid the Florida probate process is to ensure that all property is set up to pass to beneficiaries in another way.
The process is built-in with some types of assets, such as retirement accounts and life insurance policies. And, some property may be held with rights of survivorship. But, there’s no way to list a beneficiary for your furniture or jointly title your antique salt and pepper shaker collection. For most people, the only way to avoid probate entirely is to create a living trust and transfer all property that doesn’t have a listed beneficiary or rights of survivorship into the trust. A living trust is a type of revocable trust that is used to transition the benefit of assets when someone dies.
One of the key differences between wills and trusts for estate planning purposes is that a will is submitted to probate and property in a trust does not pass through the probate process. But, even this is often an imperfect solution, as it requires the person who establishes the trust to ensure that everything he or she acquires after the trust is created is titled to the trust rather than the individual. One stray piece of property can trigger the need for probate.
One way to address this and simplify any necessary probate process is to create a simple will designating the trust as beneficiary for any property not titled to the trust.
Ideally, the probate process isn’t adversarial. But, probate disputes happen. When conflicts arise, they can be resolved through probate litigation. Probate litigation is like a lawsuit within the probate case. The claim is heard and decided by the same court overseeing probate, but the litigation involves adversarial parties.
There are two main types of probate litigation: will contests and actions against the personal representative.
A will contest is a legal challenge to the validity of a will. Grounds for contesting a will in Florida include:
Most other probate litigation matters involve actions against the personal representative. These include:
You’ve probably already recognized that it’s important to work with an experienced estate planning attorney to ensure that property is distributed as you wish after your death. Relying on intestate succession or attempting to create a piecemeal estate plan can backfire, leaving gaps that create expensive complications for your loved ones. And, Florida law requires that the personal representative of an estate work with a probate lawyer to administer the estate effectively.
But, how do you know when you need a probate litigation attorney?
Probate litigation is complicated, so it’s generally best not to attempt it on your own. If you are the beneficiary of a will or other interested party and have concerns about the validity of a will, the qualifications of the personal representative, or specific actions of the personal representative, it is in your best interest to get knowledgeable guidance before deciding how to proceed.
At Upchurch Law, we’ve been helping people with all phases of estate planning, probate and estate litigation for years. We’re here to protect your family, your legacy, and your rights as a beneficiary. If you think you may be in need of probate litigation assistance, the best way to get actionable information is to schedule a consultation.