When it comes to estate planning, the word you’ll hear the most is probate. But what exactly is it and why do people want to try to avoid it? Every state has different probate laws, so this overview is specifically based on Florida Law.
Probate is a court-supervised process for 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. Probate assets are those assets that were owned in the decedent’s sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.
So, why is it in your best interest to try and avoid this process? The main reasons have to do with time and money. Since it involves the court, there are filing fees, court fees, and attorney fees, in addition to the debts of the decedent that the probate court will make sure gets paid off immediately. The decedent’s assets will be sought after first to pay the probate fees and outstanding debts of the decedent, which lowers the amount that their heirs will eventually receive. The fees are typically based on the size of the estate and the total value of the assets.
The time it takes until everything is settled and distributed is different for every case depending on the circumstances. For example, the personal representative may need to sell real estate before settling the probate estate, or resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take at a minimum five or six months to properly handle, but it is not unusual to have it last well over a year. There are many other factors that can add more time to the process, which your attorney can help estimate for you.
Working closely with an experienced attorney to guide you through the probate process is your best bet in making sure everything goes smoothly and will put you at ease in making sure the assets are properly distributed. There are ways to avoid the probate process, so be sure to keep up with the videos, articles, and blogs posted on our website to get more detailed explanations of them.
Consulting with an estate-planning attorney can provide you with various options and ways to avoid this process, but sometimes it may be inevitable, even if a will exists. Check out our blog post about how having a will may not necessarily avoid a probate situation. Make sure you have an attorney to help you through this complicated process. We can be reached at either (954) 755-7803 or with our “contact form”.