Probate is required to have the court legal transfer title of assets from the decedent to his or her beneficiaries. It is the legal process of dividing an estate after someone passes away. How the estate is divided depends on various factors, such as whether the decedent had a valid will or assets with listed beneficiaries and “transfer upon death” rights. Below, we discuss what probate is, the process, and how to avoid it.
Why is probate necessary?
Probate helps family members divide and inherit an estate as the decedent desires. This is done by validating and executing a will, resolving debts, and dividing assets to beneficiaries. Probate exists to help family members mitigate disagreements that may occur while dividing up a loved one’s estate. Having a will is one of the best ways to communicate how you would like your affairs handled to your loved ones. If there is no will at the time of death, Florida intestate laws determine how the estate is divided.
Probate procedure
Most estates go through formal administration, where the decedent’s will is validated and executed in probate court. The probate process can take six months to a year—or even longer. Here are the steps of probate:
1. The family brings documents such as a death certificate, will, and financial statements to a probate attorney.
2. The probate lawyer files a Petition of Administration on the family’s behalf, presenting the documents to the probate court in the county where the decedent lived. This is the official start of the probate process.
3. A probate judge will look over the will and ensure it is legal. Once validated, the executor (also referred to as a personal representative) is given legal authority to carry out the terms of the will.
4. The executor notifies beneficiaries named in the will with a Notice of Administration.
5. The executor notifies any creditors about the decedent’s passing. Creditors can make claims on the estate for debts that need to be settled.
6. The estate is valued, and the estate bank account is created. Any funds from sold assets are deposited into the estate bank account.
7. Creditor claim period ends (usually 90 days after the Notice of Administration). Funds from the estate bank account are used to pay any creditor claims.
8. Once debts are paid, the remaining assets are divided among beneficiaries.
9. Once the will is executed, a Petition of Discharge is presented to the court to end the probate process formally.
Avoiding Probate
Certain assets do not need to go through the probate process. These include bank accounts and other investments with a beneficiary already named (such as a life insurance policy or an IRA account). Assets with “transferable or payable upon death” benefits also do not need to go through probate. These assets will automatically pass ownership to the named beneficiary, such as the title to real estate properties. Assets that are listed in trust also do not go through probate. An attorney can look at your estate and determine the best ways for you to avoid probate.
Peppler Law, P.A.: Central Florida Probate Attorney
For estates that go through formal probate administration, a probate attorney is required to help you navigate the process. Our probate attorneys at Peppler Law, P.A. are available to answer any questions you may have about avoiding probate and creating an estate plan. Call us at 407-316-2045 to get started.
