What is probate and can you avoid it?

First, what is probate? Probate is a court-supervised process for identifying, gathering and transferring the assets of a deceased person (decedent). The first step involves paying the decedent’s debts and then the decedent’s assets are distributed to to his or her beneficiaries.

In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.

Assets subject to the Court’s probate administration are only probate assets. But, not all assets are probate assets. There are ways that assets can be titled and/or owned that would make them non-probate assets. We can assist you in this.

 

The purpose of probate is to tie up loose ends, pass ownership of the decedent’s probate assets to the decedent’s beneficiaries and pay the decedent’s creditors, if necessary. It is the process that officially transfers legal ownership.

Many people tell us — but I have a will. A will does not avoid probate. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. The will must be submitted to the court within ten days of the decedent’s death. Depositing the will with the court does not cost anything, but there is a court fee to open a probate. (This lack of privacy of a recorded will is just one reason people sometimes look for alternatives to wills.)

In the previous blog post, we discussed, “What is a will? And do you need one?” But basically, a will is a written document that is signed by decedent and witnesses. A properly drafted and executed will allows a decedent to name a personal representative, the person who will administer and ensure the decedent’s intent is carried out, and also allows the decedent to name their beneficiaries. Thus, a properly drafted and properly executed will allows a decedent to circumvent Florida’s distribution formula to one that meets their specific wishes. In other words, without a will, the state determines how the assets are distributed.

If the decedent did not have a valid will, or if the will fails in some respect, the Court (via state statute) will determine how the assets will be distributed and who the personal representative will be. If there are no heirs, the state of Florida will take the decedent’s assets. This is rare, as most people have some surviving heir, even if distant.

A circuit court judge will oversee probate proceedings. the judge will making a ruling as to whether the decedent’s will is valid or if there is not a valid will, the judge will determine the decedent’s heirs.

If the decedent had a will that nominated a personal representative, the judge will also decide whether the person or institution nominated is qualified to serve in that position. If the nominated personal representative meets the statutory qualifications, the judge will issue ‘Letters of Administration,’ also referred to simply as ‘letters.” These “letters” are important evidence of the personal representative’s authority to administer the decedent’s probate estate.

If any questions or disputes arise while administering the decedent’s probate estate, the judge will hold a hearing as necessary to resolve the matter in question.

One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give notice of the probate proceeding to ‘known or reasonably ascertainable’ creditors. Creditors who receive notice of the probate administration generally have three months to file a claim against the estate. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim.

So, probate can be a lengthy and complicated process. But, yes, there are ways to avoid probate and we can help. Make an appointment today. We can review your assets and plans and help you determine the plan that best suits your needs. And, we’ll help you execute it.

What is a will? And do you need one?

Often times, someone will call our office and ask if we do wills. We do.

The next most common question about wills is, “Do I need a will?” My answer will usually be…”It depends…” But, while a will may not meet all of your goals, it is important to have a will, at the minimum. Wills are very affordable, especially for the protection they provide.

A will – or a “last will and testament” – can help you ensure your assets go to whom you wish. Specifically, you can use a will to leave your property to people or organizations. And, in a will, one is able to name the person (a personal representative) who will ensure the provisions of the will are carried out. Without a will, the court will appoint a personal representative.

For parents, a will can provide peace of mind because in it, a parent can also name a personal guardian to care for their minor children. And, also just as important, a parent can name someone they trust to manage or oversee any assets or property they may leave to their minor children until they become of age, themselves.

But, what happens if someone were to pass away without a will?

Well, in Florida, if you die without a will, your property will be distributed according to Florida Statutes. In general, these laws give your property to your closest relatives, beginning with your spouse and children. If you don’t have a spouse or children, your grandchildren or your parents will get your property. If there are also no surviving parents or grandchildren, the distribution will continue down a list of relatives. However, if you have no legal heirs, or family members, the state will get your property.

While sometimes people want to do their own wills, it is important to fulfill the State’s very specific signing requirements. Additionally, should you wish to disinherit someone or if you think someone may contest your will, you may want to consult an attorney to ensure you are appropriately complying with state laws.

It is important to note that a will does not avoid probate. So, while a will does leave specific instructions that may contradict and supersede how the state would distribute your assets, it does not avoid court involvement. But, we will discuss probate a different time.

So, do you need a will? It depends.

But, call the office at (352) 356-8373 and we can discuss your specific needs.

~Natasha M. Allen, Esq.

Got a will? Here are 11 more end-of-life documents you may need

A 2014 American Journal of Preventive Medicine study found that 74 percent of adults have no healthcare proxy, living will or advance directives; only 42 percent have a will, according to a survey earlier this year from Caring.com.

Allen Law Office can help you – give us a call.

Your last will and testament shouldn’t be the last word on your end-of-life wishes.

If you knew you were going to be audited next month, you’d do what it takes to ensure the process goes smoothly, she said. Heading on vacation? Same.

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But on end-of-life matters, Florian said, we’re notoriously remiss. A 2014 American Journal of Preventive Medicine study found that 74 percent of adults have no healthcare proxy, living will or advance directives; only 42 percent have a will, according to a survey earlier this year from Caring.com.

Read More: https://www.cnbc.com/2017/11/15/12-financial-planning-documents-to-handle-health-end-of-life-care.html