What Is Probate & When Is It Necessary?

During life, we work hard to collect various assets, often beginning with a bank account and eventually buying a car. Soon we start building an IRA and an investment portfolio and then buy a home or even investment properties. Regardless of how much wealth we acquire, we all will eventually die, leaving our estates behind for loved ones and other beneficiaries to sort out.

There are several different ways a person can pass along their estate assets, including through a Last Will & Testament (Will), a Trust, and Beneficiary designations. In Florida, one can also ignore the matter and let state law decide.

The Probate process is required when someone dies with assets titled in their name alone and without having named a beneficiary to handle their estate. Most of the time this process would not be required if beneficiaries were properly named, or assets were titled in a trust.

In Florida, probate is a court process in which a deceased person’s assets are transferred through a judicial proceeding. At Hill & Kinsella, we often hear, “I have a Will, so no probate is needed.” But the truth is, the presence of a Will does not eliminate the need for probate. After a person is deceased, those left behind could have different memories of what that person wanted. The properly drawn-up Will is meant to be the final statement of wishes and what the court uses during the probate.

How Does Probate Work?

The basic goal of probate is to pass clear title of assets to the rightful beneficiaries. The first step in the process is a petition for Administration filed by the attorney for the personal representative. Once the petition is approved, the court will issue an order and letters of administration. These documents give the personal representative authority to carry out the business of the estate. The court-appointed personal representative can collect estate assets, protect the estate, deal with creditors, and eventually, distribute the estate to rightful beneficiaries.

What If There Is No Will?

If the person died Intestate (without a Will), contrary to common belief, the state does not take their assets. The State of Florida determines who should be the beneficiaries or heirs. Heirs are the spouse and children, if there were any. If there are no children or grandchildren, then heirs would be other close relatives.

Passage of assets in accordance with these laws may or may not be the way a deceased wanted the assets to pass. After a person is deceased, those left behind could have different memories of what that person wanted. The properly drawn-up Will is meant to be the final statement of the decedent’s wishes and what the court uses during the probate. The court is involved to oversee the personal representative’s activities and to settle differences.

The Pros and Cons of Probate

These days, many people say that probate is bad but they rarely explain why. In truth, while many times it is best to avoid probate, there are occasions when it may be a good tool for passing assets along. Other times, it is the only option.

Some of the Pros of Probate Include:

  • The court oversees the process, which can protect the beneficiaries of the estate.
  • Probate can limit the creditor claim period, forcing creditors to show up or go away within a very limited period. In Florida, creditors have up to two years to make claims unless there is a probate. The 90-day probate notice period could shorten the window by more than one and a half years. At Hill & Kinsella, we advise all probate clients to allow us to help them with creditors, thus, protecting them from manipulative and unscrupulous creditors.
  • Probate can speed up certain processes, such as the sale of a home in certain circumstances.
  • It allows the personal representative to pay the decedent’s expenses, such as funerals and final medical bills. Without this option, one family member may be unfairly burdened with the costs.
  • Probate opens the estate process to all beneficiaries requiring open communication about how the estate is settled.
  • It can be one way to fund trusts for special needs or minor beneficiaries so that you can avoid the expense of guardianship or losing public benefits.

Some of the Cons of Probate Include:

  • The probate court system, including the judges and clerks, have their own timelines for getting work done. It can be fast or slow, depending on many factors. For instance, we saw a huge delay in the court processes during government cutbacks and most recently, during the Covid-19 pandemic.
  • It can take more time to distribute the estate because of the steps that must be followed.
  • It can be costly. Basic costs include fees for the personal representative, the attorney, court filing fees, and bonds. Often, the expenses of probate can be limited when all beneficiaries are willing to work together. Hill & Kinsella works with estate planning clients to avoid probate where possible. If probate cannot be avoided, then we work with clients to keep costs at a minimum.
  • It opens the door for litigious or dissatisfied people to access the estate and create costly and lengthy litigation over how the estate will be distributed.

Consult with Our Probate Team Today

At Hill & Kinsella, our Probate fees are generally set at a minimum of $3,000-5,000. may Fees are sometimes set at a percentage of the estate, according to Florida statutes that state a reasonable fee is 3% of an estate worth less than $1 million and reduced after that. Each probate matter is different based on the individual decedent and circumstances of that life. We work to set a reasonable fee after learning about the estate during our consultation with you.

If the value of the estate justifies probate, but your ability to pay the fees is limiting, please call us at (727) 240-2350 to discuss your options.

Each probate administration is unique, which is why we are here to help you tackle tough questions head-on, explore your legal options, and find the best path forward. Contact our attorneys today to schedule a consultation so we can discuss your case and possible solutions.

Categories