What Is Probate?
Probate is the legal process of handling someone’s estate after their death. It involves:
- Proving the validity of a will, if one exists;
- Identifying assets;
- Notifying creditors;
- Paying debts; and
- Distributing property.
Now let’s debunk some common Florida probate misconceptions.
Misconception #1: All of Your Assets Must Go Through Probate
Only certain assets go through probate. In the estate planning world, assets are divided into two categories: probate and non-probate assets. Probate assets are assets solely in your name and that do not have a beneficiary designation. As you can assume from their name, these assets go through probate. Non-probate assets, on the other hand, are everything else. For example, life insurance policies, Pay on Death (POD) accounts, and jointly titled property are all non-probate assets—meaning they are not probated. These types of assets are also not subject to the terms of your will.
Misconception #2: Your Estate Will Not Go Through Probate If You Have a Will
Having a will does not determine whether your estate will be probated or not. It all comes down to the type of assets in the estate. In fact, under Florida law, if you have someone’s original will, you must file it with the probate court within 10 days of learning of the person’s death. But filing the will is different from probating the will. By filing with the court, you’re simply handing the will over. To admit the will to probate, you need to file a petition.
Misconception #3: If You Die Without a Will, the State Gets Everything
While it’s possible for your assets to go to the state, it’s very unlikely and rarely happens. When someone passes away without a will, Florida’s intestate succession laws govern. In this scenario, the probate court distributes the assets to the decedent’s family members in a certain order. Who inherits depends on who survives the decedent. The spouse is the first in line to inherit, then the children, then the decedent’s parents, and so on. Even a distant cousin has the right to receive any assets before the state does.
Misconception #4: Probate Takes a Long Time
Since each estate is different, the probate timeline will vary. For large estates with complex assets or tax implications, the probate process can be lengthy. Creditors need time to file claims, and sometimes real estate must be sold, which can prolong the process. If the decedent held a business interest, for example, it will take time to carry out the succession plan. That being said, many estates are probated within months and typically don’t take longer than one year. In fact, Florida has what they call “summary administration,” which is a simplified and inexpensive probate process for small estates. To qualify, either the decedent must have died over two years ago, or the value of the estate must be $75,000 or less.
Misconception #5: Probate Is Expensive, and Will Leave Nothing for the Family
Probate can be costly, but that truly depends on the complexity of the estate. What can seriously diminish the value of an estate is litigation. If someone contests the will or the heirs believe the executor is mishandling the estate, it can cost a significant amount of money to litigate those claims. However, these costly circumstances don’t arise all that often.
Misconception #6: Debts Disappear When You Die
While we all wish this was the case, it’s not. Most debts simply become debts of the estate, and they must be satisfied before any distributions are made to the heirs or beneficiaries. A debt only goes away if the estate runs out of money to pay its financial obligation.
Misconception #7: Only Estates That Are Taxable Go Through Probate
Whether your estate owes taxes or not is irrelevant to probate.
Misconception #8: The Personal Representative named in the Will Must Administer the Estate
The person appointed in the will can only serve as the personal representative (sometimes referred to as an executor) if he or she meets Florida’s requirements. To be a personal representative or executor of an estate, a person must:
- Be 18 years of age or older;
- Be willing and capable of performing the duties;
- Be a Florida resident (non-residents may serve if related to the decedent); and
- Not be a convicted felon.
If the named personal representative fails to meet the requirements, the court will choose someone. This is why it’s important to name at least one personal representative for your estate.
Misconception #9: The Lawyer Who Wrote the Will Can Help with Probate
There’s no requirement for the drafting attorney to assist the personal representative through probate. The personal representative can choose to hire the attorney, but the attorney has no obligation to the personal representative or heirs of the estate.
Structure Your Estate Plan to Avoid Probate
Many people choose to create an estate plan that spares their family the hassle of probate. But this approach isn’t for everyone. If you anticipate discord between family members after your death, it may be better to involve the probate court throughout your estate’s administration. This highlights the importance of working with an experienced estate planning legal practitioner. Once your lawyer learns about your assets, family dynamics, and goals, he or she can tailor an estate plan that suits your every need and anticipates potential conflicts.
Our Probate lawyer Know Fact from Fiction
Probate can be complicated enough, so there’s no need to muddy the waters with unfounded Florida probate misconceptions. If you still have questions about the probate process, wills, trusts, or estate planning, reach out to us. At Beller Law, P.L., we have over 40 years of combined experience that we use to help clients navigate through, plan for, and avoid probate. Call 904-288-4414 or contact us online to discuss your probate matters.