Florida Probate Attorney
The passing of a loved one or close relative is a devastating, traumatic event – one of the most mentally stressful events we endure during our lifetimes, according to psychologists. In the aftermath of a loved one’s death – whether expected or unanticipated – family members often find themselves overwhelmed with the number of decisions that must be made while they are dealing with their loss. What funeral home should be called? Should the deceased person (decedent) be prepared for burial or cremated? What other family members and friends need to be notified? How should the decedent’s personal property and any real estate he or she may have owned be treated?
Most people have a vague understanding that, upon death, courts must become involved in some manner in winding up the decedent’s affairs. It is common for many people, however, to be confused about the steps they must take in order to properly wrap up the decedent’s affairs. It is during this confusing process that executors, administrators, and/or family members of the decedent can benefit from the advice and representation of a skilled Florida probate attorney.
What is Probate?
Put simply, “probate” refers to the legal process whereby a decedent’s legal affairs are finally resolved and the decedent’s estate “wound up.” This legal process is supervised by the courts. The probate court is ultimately in charge of who is named the executor (also known as the administrator or representative) of the decedent’s estate, whether the decedent’s purported will – if any – is admitted and given legal force and effect, and oversees payments made to creditors and distributions of the decedent’s estate to his or heirs and/or beneficiaries. Property of any type is said to pass “through probate” if that particular item of property comes within the court’s jurisdiction prior to being devised to a creditor, an heir, or a beneficiary.
Depending on the size of the decedent’s estate and the complexity of his or her estate plan, probate is a process that can last several months from start to finish. Where heirs and/or beneficiaries squabble over whether the decedent’s will should be admitted to probate, or the manner in which the executor is handling the decedent’s estate, the probate process can drag out for years. While a probate lawyer cannot avoid all probate-related challenges and issues, they can help ensure that any issues that arise are dealt with efficiently and effectively.
Does Every Decedent’s Estate Pass Through Probate?
Not every decedent’s estate needs to pass through probate. When a decedent’s estate is exempt from probate for one reason or another, resolving the outstanding issues of the decedent can be considerably easier. Avoidance of probate is a goal of many estate plans, but probate can also be avoided unintentionally. The two most common scenarios under which a decedent’s estate is not subject to the probate process are:
- Where the decedent’s estate contains no probate assets: “Probate assets” are those items that the decedent owns in his or her name only and for which there are no “payable on death” or “deliver on death” instructions. Real estate owned by the decedent and his or her spouse is not a probate asset because the decedent’s spouse also has an ownership interest in the real estate. Similarly, a bank account with a “payable on death” instruction is not a probate asset. Finally, any asset that is owned by a living trust is not a probate asset as it is the trust – not the decedent – who is the owner of the asset (a living trust can “outlive” the creator of the trust and the trust’s initial beneficiaries). Where a decedent’s estate contains no probate assets, then the probate process is unnecessary.
- Where the decedent owned little property: Alternatively, where the decedent’s estate is of a sufficiently small size, the executor or representative can file for “disposition of personal property without administration.” This process allows the executor to reimburse the person who paid for the decedent’s final expenses without having to go through the probate process. Disposition without administration is only available where (1) the decedent did not own any real estate at the time of his or her death; and (2) the decedent’s assets are either exempt from the claims of creditors or are not greater than the total of the decedent’s final expenses.
Even where a decedent’s estate appears to be exempt from the probate process, the executor or representative may need to file appropriate documents and affidavits with the court that show that the decedent’s estate and its assets are exempt from the probate process and how the decedent’s assets were eventually distributed. This requirement can usually be accomplished swiftly with the assistance of a Florida probate attorney.
Summary Administration – A Probate “Shortcut”
If the decedent’s estate does not qualify for probate avoidance or disposition of personal property without administration, the decedent’s estate may still qualify for summary administration. Summary administration can be seen as a “probate shortcut” in that while the decedent’s estate and its qualifying assets still pass through the probate process, the process is much simpler than the traditional probate process. Summary administration is only available in cases where the decedent died more than two years ago or the value of the decedent’s estate that would pass through probate is less than $75,000 (not including assets that would not pass through probate).
Summary administration begins with an heir or the executor filing a petition for summary administration with the court. Assuming the decedent’s heirs, beneficiaries, and surviving spouse agree with the petition and the supporting documentation, the court enters an order granting summary administration and releasing the property of the estate to the appropriate creditor, heir, and/or beneficiary. Thus, while the decedent’s estate still passes through the probate process, creditors, heirs, and beneficiaries obtain the assets to which they are entitled much quicker.
As noted, not all estates qualify for summary administration. The experienced probate attorneys at Centonzio Law, PLLC are able to evaluate your loved one’s estate. We can assist you in determining whether summary administration is an option in your situation. We pride ourselves on being able to assist our probate clients handle the business of their loved one’s estate efficiently so that they are free to grieve and mourn the loss of their loved one. Contact us today to learn how we can assist you.
Overview of the Probate Process
If a decedent’s estate does not qualify for probate avoidance, disposition of personal property without administration or summary administration, and the estate contains probate assets, the estate must pass through the formal probate process. The process begins with locating the decedent’s will, if there is any will. A decedent who created a will is said to have died testate, whereas a decedent who died without a will died intestate. If the decedent died testate, then the will must be filed with the court and any heirs and/or beneficiaries given an opportunity to object to the will’s admission. If the decedent died testate and the will is accepted into probate, then the executor or representative named in the will is appointed by the court and given the necessary legal powers to wrap up the decedent’s affairs in accordance with the will. If the decedent died intestate, then the court will appoint a representative for the decedent’s estate.
Once an executor or representative is appointed and the heirs and beneficiaries notified of the commencement of probate proceedings, the executor or representative must:
- Complete an inventory of the decedent’s estate which lists the assets and approximate values of all probate assets, both real and personal property;
- Provide timely and appropriate notice to the decedent’s creditors so that claims can be filed against the decedent’s estate if the creditor believes the decedent owes a valid debt that ought to be paid from the estate’s assets;
- Pay all appropriate bills and claims from the estate’s assets, including the decedent’s last expenses and approved claims submitted by creditors;
- Transfer the remaining property of the estate to the heirs and beneficiaries designated in the decedent’s will or, if the decedent died intestate, then according to Florida law; and
- Provide a final accounting to the court that shows what expenses were paid and how the decedent’s remaining assets were distributed.
Handling the estate of a loved one is no trivial matter: Failing to follow the legal requirements of the probate process, or failing to complete the tasks in a timely manner, can subject the executor or representative to legal liability. Avoid this costly and potentially damaging possibility by having a knowledgeable and talented Florida probate attorney help you through the probate process. Whether your loved one has just recently passed or whether you are in the midst of a probate proceeding, the experienced attorneys at Centonzio Law, PLLC can help.
Potential Problems During Probate
Some probate cases proceed smoothly from start to finish without any legal hang-up or trouble. In other probate proceedings, legal battles are commonplace and disrupt the settling of the decedent’s estate. Some problems that typically result in probate court challenges include:
- Failing to provide notice: Heirs and/or beneficiaries may challenge the probate proceedings if they feel they were not given appropriate notice and an opportunity to participate in the probate case;
- Challenge to will admission: If an heir, beneficiary, or other interested party believes the will that is being offered to the probate court is legally deficient (i.e., if the creator of the will was not aware of what he or she was doing when he or she crafted the document), a challenge can be brought to keep the will from being considered by the court;
- Failing to perform representative’s duties: The executor or representative is required to carry out his or her duties of settling the decedent’s way in a reasonable and prudent manner. If the executor does not settle the decedent’s estate in a timely manner, if he or she unreasonably causes the decedent’s assets to depreciate in value, or if he or she fails to fulfill his or her obligations in any other manner, a lawsuit may be filed against the executor or representative.
Aside from causing legal headaches for the executor or representative, these disputes delay the resolution of the decedent’s affairs. Having a probate attorney involved in your case from the outset can help you avoid some of these challenges, saving you time and money in the long-term. Even if a probate challenge is unavoidable, having an attorney’s assistance may be able to help you resolve the dispute more quickly.
Why You Need Help from a Probate Attorney
Even individuals who have served as an executor or representative for a loved one’s estate in the past can make costly and easily avoidable mistakes when handling the estate and affairs of a recently-deceased friend or family member. These mistakes can subject the executor or representative to personal legal liability. Additionally, heirs and beneficiaries may be unintentionally waiving important legal rights by not having experienced legal counsel informing them of what rights they have and how those rights can be asserted. Whether you are a representative of an estate needing direction or an heir or beneficiary confused about the probate process and in need of advice, the attorneys at Centonzio Law, PLLC can assist you.
Our attorneys are intimately familiar with Florida’s probate code. This includes the duties and responsibilities of estate representatives, the requirements that a will must meet in order to be admitted to probate, and the rights and heirs and beneficiaries enjoy under the law. Regardless of the nature of your involvement in a probate proceeding, our Florida probate lawyers in Largo will take the time to understand your needs and concerns and evaluate the documents and any evidence involved in your case in order to provide you with as accurate and relevant of advice as possible.
The law firm of Centonzio Law is here to assist you in resolving your probate matter as expeditiously and favorably as possible. The sooner you contact our office, the sooner we are able to bring our knowledge and skill to assist you. Contact our office today by calling (727) 490-8712, or contact us through our website, and discuss your probate questions and concerns with our experienced Florida probate attorneys. If you are near our Clearwater and St. Petersburg offices, you are welcome to visit us there.