Probate

Probate administration is a court supervised process by which assets are transferred and retitled to someone else after someone dies, and creditor claims are evaluated and paid.  Property that is titled solely in the decedent’s name, as well as some property titled in joint names, will need to go through probate in order for it to be transferred.

Probate administration includes notifying the court that someone has died and assets need to be retitled, submitting the Will to be validated (if there is one); appointing a Personal Representative (known as executor in some states); collecting and taking an inventory of assets; collecting on insurance policies, retirement plans, and all other assets; notifying and paying creditors; identifying the heirs/devisees/beneficiaries; preparing and filing any necessary tax returns; and ultimately distributing the assets according to the Will or Trust, or as the court determines.

The primary reasons to go through a probate administration are to cut off creditors (otherwise they have up to two years to ask for money), provide clear title to real property including homestead, determine the heirs, validate the Will, and put someone in charge who will have the authority to conduct the business of collecting and distributing assets, filing tax returns, cancelling accounts, selling real property, etc.  In many cases, even though there may be little in the estate, it is a good idea to go through probate and is not necessarily something to avoid completely.

The probate process can be short or lengthy and expensive depending on a number of factors, such as the amount and type of assets to be retitled, whether there was a Will, who the heirs are, and if anyone wants to argue and contest the probate.  In Florida, a formal administration will usually take a minimum of six months.  This is because the creditors need to be notified and allowed at least three months to file a claim.  Florida law also requires that a Florida attorney file all the papers related to the probate.  In other words, probate is not a do-it-yourself type of court proceeding.

Probate proceedings and filings are also generally a matter of public record.  For those people who wish to keep their financial affairs private, probate is something they will want to consider minimizing.  Joint tenancies, beneficiary designations (POD/TOD), and revocable living trusts are useful for minimizing probate but have to be structured carefully and used wisely.  By speaking with a qualified estate planning attorney, you can determine how best to hold title to your property to accomplish your objectives.

Should you be called upon to serve as a Personal Representative, or you would like to consider your options for minimizing probate, please contact us.  We are here to help you.