What is Probate?
Probate is a process through the court system to ensure the legal transfer of assets from the deceased’s name to the names of the deceased’s legal heirs or beneficiaries.
Probate is generally also necessary to prove the validity of a will, appoint someone to manage the estate, inventory and appraise estate property, pay the deceased’s debts and taxes, and distribute the estate property as directed by the will (or by state law if there is no will).
What is the Probate Process in Florida?
Florida State law designates who is entitled to begin the probate process. The person with the highest priority is the person who is named in the deceased’s last will as the “executor” or “personal representative.” If there is no will, then the law generally establishes a hierarchy of who is eligible in what order, normally starting with a surviving spouse, then surviving adult children, and so on The individual who has priority would start the probate process by having an attorney prepare the legal documentation to initiate probate and by filing the original will with the probate court in Palm Beach County.
Depending on the circumstances of the estate and the family, sometimes probate can be opened without advance notice to interested parties; other times, advance notice to interested parties is required before probate is officially opened. The best way to determine exactly what the probate process applies to the estate is to meet with us so we can review your particular circumstances and give you the best possible guidance.
How is the Executor Chosen?
If the deceased person left a last will that is recognized as valid by the probate court, then the person named in the will as the executor or personal representative typically will be appointed, barring extraneous issues such as that person’s illness or old age. If the person named in the last will is unable or unwilling to serve as an executor, or if there is no will at all, then the probate court may appoint an adult family member, trusted friend, or professional third party.
How Does the Executor Get Paid?
Florida State law provides that executors may be paid reasonable compensation for the time spent in administering the estate. This said, some executors, particularly if they are the surviving spouse or family members of the deceased, decline to be paid.
Could I be Held Personally Liable for Making A Mistake as an Executor?
Being an executor is a big responsibility.
The probate code contains pages upon pages of complex legal rules and procedures that an executor must follow during the probate process. In addition, there are certain deadlines that an executor must meet in filing papers with the court and providing notice to interested parties.
If an executor does not comply with any of these rules, he or she can be held personally liable for any losses to the estate.
Does a Trust Go Through Probate in Florida?
In most cases, if your loved one left a trust as the cornerstone of their estate plan, then no you do not need to go through probate. However, there is one big caveat here: The deceased must have ensured that all of his or her assets were properly titled in the name of the trust or properly named the trust as the beneficiary in order to completely avoid probate.
Unfortunately, not all estate planning attorneys who draft a trust for their clients ensure that assets are properly owned, and beneficiaries are properly designated. Time and again we have helped family members of a recently passed loved one who found out title and beneficiary designations were not proper, and then they face the frustration, expense, and delay of a probate proceeding even though the person they loved had a trust.
You may be asking: Why is that?
Oftentimes, a trust was prepared many years ago and was never updated. Assets changed, the law changed, but the trust only got more out of date. That is why it is so very important that you carefully choose your estate planning attorney who will meet with you for regular reviews of your estate plan and your assets so that the planning you do now works as planned later.
In Florida, What Assets are Subject to Probate?
As a general rule, assets owned solely in the name of the deceased person are subject to probate. By contrast, assets with titles designated as “joint tenants with right of survivorship” are not subject to probate and pass by operation of law to the surviving joint owner. Also, assets with a “transfer on death” or “pay on death” designation, such as life insurance and retirement accounts, are not subject to probate and pass by operation of law to the designated person In some situations, however, assets that would otherwise pass by title or beneficiary designation to a specified person can be subject to the probate process.
How Are Probate Assets Distributed If There is No Will?
When there is no will or trust to dictate who receives what, then probate assets will be distributed according to state law. The state legislature has made their best guess as to who you would want to receive your assets.
The typical hierarchy is that all probate assets go to your surviving spouse; or if you do not have a surviving spouse, then all probate assets are split equally among your children; and so on following the branches of your family tree.
How Long Does Probate Take and How Much Does it Cost in Florida?
Probate proceedings typically take around 6-12 months if there are no snags whatsoever in Florida. Some probate cases linger for two or more years if beneficiaries are disputing or if the deceased left property in multiple states.
In terms of cost, every probate proceeding is different. Probate costs include court filing fees, attorney fees, appraisal fees, professional fees such as tax preparation, executor compensation, document certification fees, recording fees, and more. Some states allow fees to be determined as a percentage of the probate assets, and other states provide that fees are determined pursuant to a statutory schedule.
How to Choose the Right Florida Attorney for Your Probate Case
The best way to ensure your probate proceeding is handled properly and quickly is to choose your attorney wisely. Not all Florida attorneys are the same. Too many lawyers only “dabble” in probate or trusts. Do not choose a lawyer who does probate “on the side” – this exposes you to blunders throughout the process, causing problems for you that should have never come up and ultimately delaying the resolution of the probate proceeding.
You do not need to hire the same attorney that created your will. Just because a particular attorney drafted the will does not mean that attorney must handle the probate process, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you.
Choosing your probate lawyer is one of the most important decisions you will make.
If you put in the time and effort to find the right lawyer, you will be rewarded with a compassionate advisor who will help you navigate the probate process with minimum headache and hassle.