What is Probate of a Will

What is Probate of a Will


Florida Probate Process

Probate is the legal process of distributing an estate that occurs after a person dies.  The probate court would oversee the entire process from beginning to end.  Florida law governs the rules and procedures of the probate court and distribution.  Probate makes sure that the estate is administered properly so that the estate creditors get paid what they are owed and that the beneficiaries get what they are entitled to.

Probate Administration

The probate process can be administered in different ways depending on whether the decedent dies with a will or without a will.  A will is a written legal document where one states what they want to happen to their assets after they die and sometimes appoints a personal representative (also called an executor). If there is no will or if the will does not appoint a personal representative, then the court would appoint one pursuant to the statutory scheme under Florida law.  The personal representative is in charge of paying the decedent’s final bills, the estate’s creditors, the estate taxes, and distributing the assets to the beneficiaries.  The personal representative is responsible for administering the estate of the decedent with the best interest of the beneficiaries in mind. That is why it is important to make sure that the personal representative has hired a competent probate attorney to help him/her through the probate process.

Probate with a Last Will and Testament 

If a person dies with a will, the whole probate process is a lot easier and smoother because the court and personal representative would just follow the decedent’s wishes.  The personal representative is the one who brings the will to probate court and fills a petition asking the court to accept the will as valid.  Further, the personal representative would oversee and fulfill the decedent’s legal plans such as how the decedent’s real estate and personal property is supposed to be distributed. The probate court will also oversee if the last will and testament was validly executed pursuant to Florida law. If the last will and testament was not validly executed, then it could create an issue, and the estate would need to be administered as if it were an intestate estate.

Common Misconception About a Last Will and Testament  

There is a common misconception with many potential clients when it relates to a last will and testament. The most common misconception is that the probate process is not necessary when the decedent left a last will and testament. Unfortunately, a last will and testament does not avoid the probate process. A last will and testament does not transfer legal title to the decedent’s asset at the time of the decedent’s date of death. A last will and testament is more of an instruction manual for the probate court to follow.

Probate Without a Last Will and Testament

If a person dies without a will, the decedent’s estate would be distributed by intestate succession.  The laws for how the estate will get distributed varies state by state but usually takes much longer than when the decedent dies with a will.  Since there is no will, the court would appoint a personal representative (also called an executor)., and determine, by intestate succession laws, what heirs receive what portion of the estate.  Most states have the surviving spouse as the first in line to receive estate assets and then the intestate statutes distribute the rest of the estate to children or other heirs.  In the state of Florida for example, if the decedent left a surviving spouse with children of the same marriage, or just a surviving spouse then the surviving spouse will receive one hundred percent of the decedent’s assets. The statutory scheme is different depending if there is a surviving spouse and the blood relationship of the surviving children (if any children are from the surviving spouse and the decedent). That is why it is important to consult an experience probate attorney to advise you on the potential statutory scheme.

Avoiding the Probate Process

There are ways to avoid probate by the utilizing estate planning.  The deceased person may have a small estate, which are sometimes are exempt and allow for a faster probate process.  Each state has different maximums for what qualifies as a small estate.  Further, the person may have established a living trust and thus forgoes the need for probate. If a trust is in place, property would not need to go through probate since the trust is under the control of another person with legal title to the property and who is in charge of distributing the trust based on the trust agreement.   Another way to avoid probate is to make sure that all bank accounts, insurances, and retirement accounts have beneficiaries listed.  If they do, then there is no need to probate these accounts because those assets automatically pass to the beneficiaries listed.  If there is no beneficiary listed, then probate would need to be opened to determine the next of kin.



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