When a loved one passes away, the grief one feels drowns out the ability to execute on the necessary actions to preserve their wishes. The legal tools by which we do so are often overlooked and misunderstood, and that is mainly due to the fact that there isn’t enough education on how to protect and pass on your assets effectively.
Probate is the process of transferring your assets into the name of the beneficiaries you wish to provide said assets to, upon your death. It also provides creditors with an opportunity to make a claim against your estate for any unpaid debts.
Assets such as a home, a vehicle, or a bank account will have to be provided in an itemized list to the Court. More often than not, someone will pass away without an Enhanced Life Estate Deed, thus eliminating the ability to pass on their home outright to their desired beneficiaries. Probate is necessary to transfer specific interests of an estate into the name of the selected beneficiaries properly.
It is also important to note that the size of the estate will determine the type of administration that will occur.
Some of the items that will be required to complete the probate process are:
1. The Original Certified Death Certificate
2. A statement reflecting that the Funeral home was paid in full
3. The Original Last Will and Testament
4. A List of creditors/ debtor’s name, the account number, and the amount due
5. List of assets including a description and their estimated value; bank account info including bank name, account number, balance; and the address of the homestead
6. The Beneficiary names, addresses, and relationship to decedent
7. Who will be Personal Representative and their address
8. If any ancillary probates have been opened in another county or state
We will then draft the initial probate documents, which include but are not limited to the following:
The Petition for administration, a notice of designation of email addresses for service of document, Oath of Personal Representative/Designation of Registered Agent and Acceptance, a proposed order admitting the will to probate which appoints the identified individual as personal representative, letters of administration, waivers of service of the notice of administration, consent to probate, and a notice to creditors, which provides them with a certain period of time in which to make a claim for any debt owed by the descendant.
If the home was/is homesteaded, we will need to draft:
- Petition to Determine Homestead Status
- Proposed Order
- Creditors need to be served via certified mail
If the estate requires a formal administration, we will then draft:
- Publication of notice to the creditors;
- Proof of publication;
- Notice to the department of revenue/department of social security with death certificate and notice to creditors;
- Proof of service of notice to creditors;
- Inventory;
- Affidavit of no estate tax due;
- Statement regarding creditors;
- Waiver of accounting;
- Petition for discharge with estate assets and plan of distribution;
- Order for discharge
The Importance of a Last Will and Testament
A last will and testament is essential when outlining how you would like your assets to be divided upon your passing, especially any digital assets such as photos, crypto currency, media platforms and revenue derived from such.
Take the untimely and unfortunate death of Chadwick Boseman as an example where a last will and testament was not created:
- Chadwick Boseman, known for his roles in the “The Black Panther,” “Get on Up,” and “Marshall,” passed at the young age of 43 due to colon cancer. He died intestate, which means that he passed without leaving a Last Will and Testament behind outlining how his estate would be distributed or who would be nominated as the administrator of such.
- His wife, Taylor Simone Ledward petitioned the court to be appointed as administrator of his estate and the distribution of assets would be subject to the intestacy laws of California, which provided for his spouse and his parents to be apportioned their interests in accordance with such.
- In this instance, had his probate matter taken place in the state of Florida, the intestacy statute would have provided the entirety of Chadwick’s million dollar estate to his spouse, since he passed without any descendants (children, grandchildren, great grandchildren, etc.).
- It is important to note that legal fees are removed from the totality of the estate, as well as costs and court fees that are incurred in furtherance of the probate matter itself.
Our Ultimate Point?
Do yourself and your loved ones the favor of planning ahead of time. The complication of, not only wondering what your wishes were, but also relying on the courts to settle the matter in probate is so much stress to put your loved ones through. Having a comprehensive estate plan does them a favor by knowing beyond a shadow of a doubt where you want your assets to go.
If a family member does pass away, with or without a will, then reach out to us. We will do our best to help you through that process so that their wishes are carried out.
So much of our objective here at The Orlando Law Group is about preventing complication before it happens. With an estate plan, you also achieve significant peace when concerned about the future, which is always, to some degree, unknown. Your legacy matters, and you deserve to have full control over it. If you have not completed a full estate plan, make sure to contact us and we would be glad to help.
It’s important to understand that even though there are things that you should leave out of your will, drafting your last will and testament is one of the most important steps one can take. The will identifies how you want your property and assets divided and who you want to get them when you are gone. While a will can include a variety of terms, there are some things that should not be included in your will.
A trust is a formal arrangement made with a trusted person, or trustee, which conveys property as directed by you. Trusts can be created during your lifetime, which is known as an inter vivos trust. But trusts can also be created upon your death. Such trusts are known as testamentary trusts, and as is the case with most everything in this world, there are positives and negatives that go along with it.
An estate plan is an important asset that should be updated as time goes on. Ideally, your estate plan should be reviewed annually or even quarterly, although it’s acceptable to update it at least every three to five years or when there is a life event, according to Fidelity.
What exactly is estate planning? It is twofold: (1) it’s deciding what to do with your possessions after you are gone and (2) it’s making sure your health care wishes are carried out if you become incapacitated. While most people don’t want to think about death and what happens when they die, it is still a good idea to begin planning for a time when you will no longer be around.
