The Truth About Probate

Most people think that if you die with a will, your assets automatically transfer to your heirs in a simple and straightforward process.  In Florida, regardless of whether a person dies with or without a will, their estate will be required to go through probate.

What is Probate?

Probate is a court-supervised process by which a will (if there is one) is validated, assets of the deceased person (decedent) are identified, decedent’s debts are paid, and assets are distributed to the beneficiaries.  Generally, the decedent’s assets are used first to pay the cost of the probate proceeding, then used to pay the decedent’s funeral expenses, then the decedent’s outstanding debts, and finally the remainder is distributed to the decedent’s beneficiaries.

Under Florida law, there are three types of probate administration: formal administration, summary administration, and disposition without administration. In any of these scenarios, you will need the guidance of a skilled probate attorney to help navigate the probate process.  The State of Florida does not permit pro se or do-it-yourself probate.  

What is a Personal Representative? 

A valid Florida will should appoint at least one personal representative to assist the probate attorney with the administration of the estate.  Although named in a valid will, a personal representative must be approved by the Judge.  If the named personal representative is found to be unsuitable for any reason (i.e. age, residency, criminal history, etc), the Judge will appoint a person, bank, or trust company to manage the decedent’s probate estate.

In Florida, we use the term “personal representative” but in other states you will hear such terms as “executor, executrix, administrator and administratrix” to describe the same role.

A personal representative should always seek a qualified attorney to assist in the supervision of the decedent’s probate estate. Numerous legal issues arise, even in the simplest probate proceeding, and most of these issues will be extremely confusing to non-attorneys.

What if There is No Will? 

If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. However, if the decedent did not have a valid will (or if the will fails in way) Florida law dictates those who will receive the decedent’s assets, as well as who will be selected as the personal representative of the decedent’s probate estate.  A person who dies without a valid will is “intestate.”

Can Establishing a Trust Avoid Probate? 

As discussed in further detail in our Trusts section, a trust is a legal document created by a party (the settlor) that is managed by a second party (the trustee) for the benefit of a third party (the beneficiary).  After a trust agreement is signed, the settlor will transfer his assets—such as cash, real estate, and investment accounts— into the trust.  and distributes them according to the settlor’s wishes. After the assets are transferred into the trust, the settlor no longer owns that property.  Technically, they will be owned by the trustee for the benefit of the beneficiary. Since the settlor no longer owns the property, probate is not required to transfer ownership of these assets when he dies.  

A note of caution: if a settlor forms a trust but neglects to transfer certain property into it, that particular asset will be required to go through the probate process.  Attention to detail and foreseeing thorny situations is precisely why it is so important to seek the guidance of a seasoned estate planning and probate attorney well before any complications arise.  

Palm Coast Probate Lawyers Can Help

The intricate demands of the Florida probate process can be overwhelming, especially when you are already grieving the death of a family member.  The easiest course of action for your family is to consult with a probate attorney.

 

 

The trusted Palm Coast lawyers of Eldredge and Davis can help you navigate this process so you do not have to face it alone. Contact us for your initial consultation. Eldredge and Davis conveniently serves clients in Beverly Beach, Bunnell, Flagler Beach, Marineland, and Palm Coast.