Probate Administration

Probate – what is it and do I have to do it?

Many people are under the ‘mis’impression that a Last Will and Testament avoid probate.  Others believe that if their estate is less than the federal estate tax exemption, then there won’t be a probate.  Both of these statements are false.

Almost any asset that is subject to disposition by your loved one’s Last Will and Testament is actually distributed by the probate process.  Understanding what probate means is therefore crucial to understanding these issues.

Probate is a legal process under which the deceased’s assets are transferred to their beneficiaries.  That process is in a Probate Court involving a Judge and statutory requirements.  Therefore, subject to delay in transfer of assets and loss of any privacy regarding what the assets are and the names of the beneficiaries.

There are different types of probate proceedings depending on the value of the decedent’s assets.  There can be a Summary Administration or Full Administration.  The Summary Administration is a process that is ‘quicker’ than a Full Administration.

With either a Summary Administration or a Full Administration, the Last Will and Testament is filed with the probate court in the state and county in which the decedent resided at the time of his or her passing.  Once the appropriate paper work is filed and accepted by the Court, then the probate process begins.

Filing in the decedent’s county of residence is known as a ‘domiciliary estate’.  All of the decedent’s assets located in that state and financial accounts held in that state and any other state, are included in the domiciliary probate proceeding. However, if a decedent owns real property in his or her own name in another state, then another (second) probate will be initiated, this is called an “ancillary probate administration” and typically will be opened in that state.

So why is probate necessary?  The probate process actually “protects” both the beneficiaries of a decedent’s estate, as well as any potential creditors, and of course, the taxing authorities.

What happens if there is no probate process?   Let’s take a look at a scenario your Uncle Paul left you his entire estate.  But what if Uncle Paul dies and your cousin Johnny brings a copy of Uncle Paul’s old Will into the bank and asks that Uncle Paul accounts be distributed to him pursuant to the Will. How does the bank know that this is really Uncle Paul’s Last Will?  What if your cousin beat you to the bank and you didn’t realize it? What recourse would you have once the bank distributed to your cousin? The probate process protects against just this scenario and many others.

If you submit a Will as the Last Will of Uncle Paul to the court and someone else submits a codicil to the Will to the same court we now have a centralized system that can ensure Uncle Paul’s wishes are carried out.  The personal representative (executor) marshals all of the assets of the deceased and files an inventory with the court so all interested parties can determine in full light what the estate is worth. They can also question if the inventory is complete or may be missing assets.

Florida law provides that creditors have three months from the date of “notice of publication” of the probate administration to file a valid claim against the estate.  There are laws that deal with creditors, how they are to make claims, and how the personal representative may object to any such claim. The personal representative actually has a duty to notify reasonably known creditors of the administration.

Once all of the creditor claims have either been dealt with and all tax clearances have been obtained, the personal representative submits an accounting of the estate to the court.  All of the income and expenses are listed, as are items of capital gain and loss.  The personal representative presents a schedule of proposed distributions pursuant to the terms of the Will.

The distributions may be to beneficiaries, to trustees of testamentary trusts established under the terms of the Will.

All of the beneficiaries have the chance to object to any item listed in these petitions, and can appear before the court.  A judge decides if any objection has merit.

Probate can be an intimidating process.  You don’t have to do it alone.

Don’t worry if you are out of state and have to handle a Florida probate, The Curran Law Firm can help you throughout the State of Florida.

Local or long distance, CLF is here to assist with your Florida probate needs.  Call now to schedule your appointment.