Probate in Brief
What?
Probate is the court-supervised distribution of an individual’s property.
Why?
Probate ensures the orderly distribution of one’s worldly possessions.
How?
Drafting a Last Will and Testament can significantly speed up the probate process, saving time and money.
Polk County Probate Attorneys You Can Trust
The State or governing authority has played at least some role in controlling the distribution of property after death for quite some time. The ancient Egyptians, Greeks, and Romans all had some formal governmental procedure for managing one’s property after death. For example, in ancient Rome, a person could draft a will (testamentum) that would be presented to a magistrate for approval after the individual’s death. If approved, the estate would be settled according to the terms of the testamentum. In modern-day Florida, state courts, guided by Florida’s statutory, case, and regulatory laws on the subject, oversee this through a process known as probate.
Having been named as the personal representative in a will, many individuals find themselves suddenly thrust into a very unfamiliar world. Legal pleadings, appraisals, and taxes are just a few of the numerous documents that must either be filed with the court or maintained. Accordingly, personal representatives often seek the assistance of law firms like Herron Keller Moore who specialize in estates and probate work. We hope that after reading this brief introduction to probate, you’ll be better informed on the process and whether this is a task that requires professional assistance.
What Is Probate
When a person passes, they do so either with or without a last will (a “will”), a written document espousing the way that individual would like their worldly possessions distributed. Those without a will are said to have passed “intestate,” whereas those with a will have passed “testate.”
Although you’re likely reading this because either a loved one has passed testate or you are interested in making a will, 67% of adults in the United States do not have an estate plan. With nothing in writing and the deceased no longer there to communicate their wishes, chaos would likely erupt when deciding who is entitled to what possessions. Fortunately, the State provides order through the probate process.
How Does a Probate Attorney Help?
A probate lawyer specializes in estate law, particularly the legal process of probate, which involves administering the estate of a deceased person.
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Estate Administration
Probate lawyers guide personal representatives (those responsible for carrying out the deceased person’s wishes) through the legal process. This includes filing the will with the court, identifying and inventorying assets, paying debts and taxes, and distributing remaining assets to beneficiaries according to the will or state law if there’s no will (intestate succession).
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Legal Counsel
Probate attorneys provide legal advice to personal representatives and administrators regarding their responsibilities under probate law. This guidance ensures that all legal requirements are met and that the estate is administered in accordance with case and statutory law on the subject.
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Court Representation
An experienced probate lawyer represents clients in probate court proceedings. This includes attending hearings, presenting arguments, and resolving disputes that may arise among beneficiaries or creditors.
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Estate Planning
A Probate lawyer may also assist clients in planning their estates to minimize probate proceedings, such as setting up trusts, gathering estate planning documents, or using other legal strategies to transfer assets outside of probate.
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Contesting Wills
In cases where there are disputes over the validity of a will or concerns about how the estate is being managed, probate lawyers can help contest a will or defend its validity.
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Tax Advice
Probate lawyers offer advice on estate and inheritance taxes, helping clients understand their tax obligations and find ways to minimize tax liabilities.
Working with a probate attorney plays a crucial role in ensuring that the wishes of the deceased are carried out legally and that the estate assets settlement process proceeds smoothly and fairly for all parties involved.
What Happens When Someone Passes Without a Will
When a person dies without a will, one of the first orders of business is for the court to determine who is best fit to be the “administrator” of the estate. Otherwise known as a “personal representative” in a will, a state-appointed administrator will oversee the overall settlement of the estate. The designation of the administrator is important because they will act as the point person or manager, ensuring that the somewhat long checklist of tasks associated with the distribution of the deceased’s estate is completed. If there are no family members or trusted associates located or are deemed fit for the job, the court will appoint someone – frequently an attorney specializing in and acting as an administrator – to oversee the estate’s administration.
Some of the tasks that will need to be accomplished before distribution of the estate include:
- Taking an inventory of assets and debts;
- Valuing assets;
- Managing the estate property;
- Paying debts and expenses;
- Preparing and filing tax returns.
After the creditors are paid and the above-listed tasks are completed (with oversight provided by the court), the administrator will need to distribute the remainder of the estate. Dying intestate means that no legally sufficient record exists of who is entitled to the deceased’s property. To make this determination, the court will look to Florida Chapter 732, Florida’s Probate Code on intestacy. Here, the state assumes that the deceased would have given their property to their spouse and/or blood relatives first, followed by a list of individuals next in line. The statute provides a literal order of potential recipients, accounting for those that might have predeceased the individual, along with distinguishing between blood, non-blood, and half-blood relatives.
What Happens When Someone Passes with a Will
Common to contrary belief, those who die “testate,” or with a Last Will and Testament, may still have to go through the probate process. Although there are ways to avoid probate entirely, depending on how the estate plan is set up and the manner in which assets are titled, some estates will still undergo limited court supervised probate.
One of the first tasks undertaken after the death of an individual is to locate the Last Will and Testament, which will name the “personal representative.” This is the individual who the decedent wished to manage the affairs of his or her estate. Depending on a number of factors, including the titling of the assets, the content of the estate documents, and the assets themselves, there may or may not be property that must undergo probate. For example, if an unmarried individual passes with one bank account “payable on death,” and a primary residence that was part of a trust, probate will likely not be necessary. However, if that same person had a second home, an automobile collection, and a Last Will and Testament that names beneficiaries to these assets, probate will likely be necessary to properly transfer the titles.
In this instance, the personal representative needs to accomplish tasks similar to those of a court-appointed administrator. These tasks include taking an inventory of the property, informing and paying creditors, paying and filing taxes, and distributing the remaining estate.
But probate for those who die testate requires the State to undertake less guesswork, as the Last Will and Testaments will already have named a personal representative who will oversee the administration of the estate. Unless that individual does not meet Florida’s statutory requirements, the court will not need to determine who is best served for this important role. Similarly, the court will not turn to the Florida Statute on intestacy to determine and then locate beneficiaries. Instead, it will simply ensure that the estate was distributed in accordance with the terms of the decedent’s Last Will and Testament.
The Benefits of Having an Estate Plan
The task list is the same; the court may still need to be involved; and the property will eventually be distributed to relatives. Why then go through the hassle and expense of making an estate plan? There are a number of benefits, but potentially avoiding probate, control, time, and money are four of the most salient reasons to ensure that an estate plan has been put in place.
First, an estate plan can avoid probate entirely. This can be accomplished by ensuring that assets are properly titled and by utilizing trusts. The assets held in many trusts immediately pass to the named beneficiary and avoid probate entirely. Probate can also be avoided by titling accounts/assets so that they are “payable on death.” Thus, when the account owner dies, this automatically triggers the account to pay to the named individual(s). Although many types of trusts can be set up without a larger estate plan and assets can always be re-titled, few actively undertake these exercises outside the creation or revision of an estate plan.
Second, when someone dies, everything they own must be distributed or disposed of. The sports car that took years to save up for, the family heirloom passed down for five generations, and the retirement account that took 30 years of work to save do not avoid this inevitability. A Last Will and Testament allows individuals to exert control beyond death by dictating who is entitled to what. Frequently, these are individuals who would not otherwise have been a beneficiary under Florida’s intestacy statute. For instance, Jim’s best friend was part of the same car club and was instrumental in finding the rare sports car that he owned. Jim always promised his friend that should anything happen to him, the car would be his given the sentimental value. If Jim was unmarried, had a biological child, and died without a Last Will and Testament, the child would inherit the sports car under Florida’s intestacy statute. This directly conflicts with Jim’s actual wishes, but easily could have been solved by naming his best friend in a Last Will and Testament.
For those who pass without an estate plan, the distribution of their assets will be delayed; sometimes by years. With no guiding document, it will be the court making determinations and overseeing the blanks that need to be filled. From appointing an administrator to identifying and locating heirs, the various processes and proceedings take time. Courts have never been known for their speed, and these delays can have a tangible effect on the estate. Take, for instance, an estate that has the majority of its assets tied to one stock. While the intestacy proceeding is slowly making its way, that investment account may remain in a state of limbo no matter the market conditions. When the stock should otherwise be sold because of impending bad news, it may sit, taking on losses that no reasonable person would stomach. Conversely, when additional stock should be bought because of an upcoming exciting new product launch, none will be purchased. The entirety of that estate is effectively in the ether; visible but untouchable as the court makes its various determinations.
Finally, cost (seeming like everything in life) is a factor. Although there is an initial up-front cost associated with drafting an estate plan, that plus more will likely be paid by the decedent’s estate should they pass with no plan in place. This is because the role of the court is larger in cases where someone dies without a will. For illustrative purposes, it might be helpful to think in terms of football. In cases where no estate plan exists, the court is akin to a football coach that controls all of the plays. In cases where there is a legally valid and enforceable Last Will and Testament, the court is more akin to a referee, who is there to ensure that there are no fouls or other mishaps but otherwise lets the team play on its own.
Experienced Probate Attorneys in Polk County Can Assist
Probate can be a confusing process, as many personal representatives have little to no experience in this area of the law. Thus, it might be wise to work with an attorney experienced in probate to guide you through the various court filings, taxes, and accounting that need to be undertaken. Herron Keller Moore has attorneys and staff with decades of experience in probate. We have overseen the administration of countless estates of various sizes from both the government and private perspectives. Accordingly, you can be assured that our filings will be right the first time, saving you time, effort, and money.