What is Probate Law?

All posts, Probate, Wills, Trusts & Estates

Orlando Probate Law

How Probate Law works

People hear the words Probate Law and automatically get fearful of what they think it means.

Probate law is a court-supervised process where often the courts will appoint an administrator. They are responsible for administering the estate. This includes identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.

An example of distributing an asset might be where a decedent has a real estate asset that is granted to a family member. That family member will take legal possession of the real estate asset.

What is the purpose of estate planning?

Estate planning organizes for the distribution of a person’s estate once they pass away. Put simply, all of the assets owned at the time of death will be distributed based on the will, trust or estate plan. Assets in a person’s estate might include real estate such as houses and investment properties. Assets might also include personal property like stocks, bonds, bank accounts, cars, jewelry, etc.

Estate planning is a complex endeavor and is most appropriately handled by a professional, like an estate planning lawyer who will work collaboratively with financial advisors, insurance specialists, accountants, and other professionals in the planning of the distribution of assets.

Why is estate planning important?

Estate planning benefits people with estates of all sizes in that it allows the individual to decide exactly how their assets will be distributed upon their death. Regarding personal property, the individual can decide who should get specific assets, like a house or bank account. This makes everything very clear and prevents unnecessary arguments between the estate’s beneficiaries.

Further, estate planning can benefit the children of the decedent. With proper planning, the children of the deceased can be taken care of to ensure they maintain their quality of life.

More about the probate process

Typical questions that our probate lawyers hear include: Does probate mean I have to wait years for the distribution of assets? Does this mean I will be responsible for debts of my loved one? Will the courts make me do something I don’t want to do? Will this cost me even more money? I lost my loved one why do I have to go through this?

If a will does exist it may make probate run smoother. However, if a person dies in Florida without a valid will, all assets will have to be decided by the court and state laws once heirs are established.

What are claims against the estate?

A “claim against the estate” references a claim for money, assets, or other property that an individual has against the estate of a decedent. For instance, if the deceased person owes money to a person or entity, it is the responsibility of the executors or administrators of the estate to pa that debt.

Claims against an estate must be filed with United States Court that is handling the local probate or with the estate administrator.

What is the role of a probate attorney?

The attorney will file motions, guide and advise the client (Personal Representative) how to proceed. The attorney is the communicator to the court on behalf of everyone involved.

A probate attorney will need to assist with the following as well:

1. Collecting and managing life insurance proceeds.

2. Getting the decedent’s property appraised.

3. Finding and securing all of the decedent’s assets.

4. Advising on how to pay the decedent’s bills and settle debts.

5. Obtaining an Estate Tax id number and estate bank account.

6. Determining whether any estate taxes are owed.

If you die without having written and signed a will, you are said to have died “intestate.”

What happens if there is no will?

When there is no will your estate is distributed according to the intestacy laws of the state where the property resides, regardless of your wishes. The law does not always follow the path you would expect especially in situations where there are blended families.

Is it possible to avoid probate?

In some situations involving probate law, a probate is not necessary when there are IRA’s, 401 K’s, Life Insurance and other investments with beneficiaries. Some people also use Lady Bird deeds, trusts, accountants that are payable on death and other vehicles to avoid probate entirely.

In short, there are many different scenarios that go into an estate plan and probate, and each circumstance has exemptions especially in situations with blended families or extended families. It is wise to get your estate plan done by an attorney rather than getting forms on line so that you can look at all the scenarios and plan appropriately. Then at the time of probate, an attorney for the estate is required by the Court.

We highly recommend talking with a probate law and estate planning attorney to make sure the wishes you have for your estate should you pass away are fulfilled.

Last Updated on August 2, 2023 by The Orlando Law Group

August 2, 2023/by The Orlando Law Group

Probate Law

Probate Law

What happens to probate assets if there is no will?

If there is a surviving Spouse and no children, the surviving spouse takes all. If there is a surviving spouse and lineal descendants:

The surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half unless one or more of which lineal descendants are not also lineal descendants of the surviving spouse then the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.

If there are lineal descendants the lineal descendants share the estate, which is initially broken into shares at the children’s level, with a deceased child’s share going to the descendants of that deceased child.

If there is no Surviving Spouse or lineal descendants the property goes to the decedent’s surviving parents, and if none, then to the decedent’s brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.

There are also further exceptions that apply in some situations.

What is a personal representative and what does the personal representative do?

The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate. The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:
Identify, gather, value and safeguard probate assets.
Publish a “notice to creditors” in a local newspaper, giving notice of the administration of the estate and of requirements to file claims and other papers relating to the estate and serve a “notice of administration” on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate.
Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify them of the time by which their claims must be filed.
Object to improper claims and defend suits brought on such claims.
Pay valid claims.
File tax returns.
Pay taxes.
Employ necessary professionals to assist.
Pay administrative expenses.
Distribute statutory amounts or assets to the surviving spouse or family.
Distribute assets to beneficiaries.
Close probate administration.

What rights does the surviving family have in the probate estate?
Florida public policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a marital agreement to the contrary, a surviving spouse may have homestead rights, elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have homestead rights, pretermitted child rights, family allowance rights, and exempt property rights.

January 31, 2020/by The Orlando Law Group