Probate can be a long, complicated, expensive process that forward-thinking estate planners often avoid through the uses of trusts. The challenges of dealing with a loved one’s death can be magnified by the need to distribute their assets to their beneficiaries and resolve the demands of outstanding creditors. Probate is the process where a court supervises the process of identifying and gathering a decedent’s assets, paying the decedent’s valid debts, and distributing the remaining assets to the decedent’s beneficiaries. The Personal Representative (i.e. executor) of the estate typically does this. For Florida residents, probate is conducted in the county where the decedent was domiciled (usually their residence). For non-residents owning real property in Florida, probate is conducted in any county where the decedent’s real property is located.
Many challenges may arise during an estate’s probate, such as:
- Are there competing versions of the Will?
- Who is entitled to act as Personal Representative?
- How are assets of the estate to be valued? For example, does the estate possess the funds to conduct an appraisal of rare or unique assets such as antiques, art, furniture, jewelry, or coins?
- Who are the valid creditors of the estate? How are invalid creditors’ claims challenged and disposed of?
- Did any individuals ingratiate themselves with decedents prior to death and now possess assets that are rightfully assets of the estate?
- Is a pre-or postnuptial agreement between the decedent and a spouse enforceable as to the surviving spouse’s interest (or lack thereof) in the assets of the estate?
- Is the Personal Representative fulfilling their fiduciary duty to act in the interest of all interested persons or serving themselves to those persons’ detriment?
- Have beneficiaries expressed an intent to work together to maximize each beneficiary’s asset protection and tax minimization?
Why Is Probate Necessary?
If a decedent died with a valid will, the decedent is deemed to have died “testate.” The decedent’s will has no power or effect until it is admitted to probate by the Court. The probate process involves the Court’s supervision of a decedent’s probate assets to the decedent’s beneficiaries. If the decedent had no Will, the decedent is deemed to have died “intestate”. Probate may be necessary to pass ownership of the decedent’s probate assets to those receiving them under Florida’s intestacy laws. Assets with named beneficiaries, such as bank accounts, retirement accounts, or life insurance, do not require probate to transfer ownership. It is not generally advisable to use beneficiary designations in place of a will or trust, because these designations are extremely inflexible. If a beneficiary is a minor or incapacitated, their inheritance could result in the creation of a lengthy and expensive guardianship in the local Circuit Court to take custody of the asset on behalf of the minor or incapacitated beneficiary.
You should contact a probate attorney at Holden, Roscow & Caedington to provide specific guidance. Probate may also be necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate and assets ensure that the decedent’s creditors are paid according to the procedure.
Who is Involved in the Probate Process?
Depending upon the unique facts of the situation, any of the following may be involved in the decedent’s estate’s probate administration:
- The Circuit Court judge.
- The Circuit Court Clerk of Court.
- Any attorneys providing legal advice and/or services to the Personal Representative during the probate process.
- Any attorneys representing other interested parties, such as creditors or beneficiaries
- The Personal Representative.
- Creditors filing debt claims, such as credit card issuers, holders of promissory notes, business partners, and health care providers.
- Real estate brokers.
- Financial advisors
- The Internal Revenue Service (IRS) as to the decedent’s tax return(s) (Form 1040), the trust’s tax return(s) (Form 1041) and, with high net worth estates, federal gift, estate, or generation-skipping transfer tax matters.
While our firm is not currently taking litigation, experienced legal counsel at the drafting, transaction and negotiation stage can often avoid the need for litigation. Common probate litigation includes:
- Validity of Will or determination of priority between competing Wills
- Will contests due to the decedent’s lack of capacity or the exercise of undue influence upon the decedent
- Construction of Will to determine the decedent’s intent
- Determination of proper heirs of the decedent
- Litigation over surviving spouse’s elective share (surviving spouse, if married before execution of the decedent’s will, may elect to claim 30% of the “elective estate” under § 732.2065, Fla.Stat.).
- Litigation over pretermitted spouse’s share (surviving spouse, if married after execution of the decedent’ will, under Sec. 732.301, Fla. Stat. may elect to claim 50% of what the spouse would have been entitled to if the decedent had died intestate.
- Recovery against Personal Representative for breach of their fiduciary duties
- Removal and replacement of Personal Representative
- Accounting of assets, liabilities, income, and expenditures
How a Florida Probate Attorney Can Help You During Probate
Probate is a complicated yet critical process. Some of the common tasks a probate attorney at Holden, Roscow & Caedington can help you during this process may include:
- Preparing and filing all probate documents.
- Identifying estate assets.
- Securing estate assets.
- Managing the estate accounts.
- Obtaining appraisals for any real property.
- Collecting proceeds from life insurance policies.
- Investigating whether any estate or inheritance taxes may be due and making sure those debts are satisfied.
- Payment of bills and debts.
- Liquidation of estate assets.
- Final disbursement of assets to beneficiaries after all bills and taxes have been paid.
Florida law requires that an attorney be retained to probate a decedent’s estate. Contact us—we have the skill and expertise to be sure that probate is as efficient and economical as possible.