PROBATE

Ten minutes. That’s the record of our attorney, Bill Stetson, on how quickly beneficiaries called him after a relative’s death asking for their new money. What they didn’t understand is that the estate had to go through probate, and it would be awhile before they got their cash.

Probate is the judicial process that winds up a decedent’s affairs, pays creditors and distributes assets to beneficiaries. It only applies to assets owned directly by an individual. Probate does not apply to assets that have designated beneficiaries, such as IRAs and Pay on Death Accounts. Probate also does not apply to assets held in a revocable trust. And it doesn’t matter if the decedent had a will or not, assets held in the decedent’s individual name will have to go through probate. Here’s the probate process in a nutshell:

The probate process takes time to complete. It usually takes at least six months, and may take up to a year. If there is litigation, such as a will contest, lawsuits involving creditors or a wrongful death claim, the probate process can take much longer.

Certain estates will qualify for an abbreviated probate process called “summary administration”. There are two ways to qualify for summary administration. The first way to qualify is if the estate has less than $75,000 of assets, not including the decedent’s homestead or so-called “exempt” assets. The second way to qualify for summary administration is if the decedent has been dead for more than two years.

Florida law provides that a decedent’s estate does not have to pay unsecured creditors if the decedent has been dead for more than two years. Estates of any size, including multi-million dollar estates, could qualify for summary administration if the decedent has been dead for two or more years.

In a summary administration a petition is filed asking the court to enter an order distributing the assets of the estate. Once the court is satisfied that all creditors have been dealt with, it will issue an order saying who gets what assets of the estate. Summary administration is most common when the estate doesn’t have any creditors or when the family agrees to payoff any creditors.

We are asked routinely, “Do I need an attorney for this process?”  In many cases, the answer is yes.  All personal representatives are required to be represented by an attorney unless that personal representative is the sole interested person in the estate.  Even if an attorney is not required, it is still highly recommended because there are very specific rules and deadlines throughout the Florida Probate Code, and it is simply too complex for most people to handle without professional guidance. Running afoul of those rules or missing deadlines can significantly delay the administration of the estate and potentially increase costs.

Everyone is concerned about the cost of hiring an attorney to help navigate the probate maze. The Florida Probate Code addresses this as well and says how much a reasonable fee for an attorney is in most cases.