When it comes to administering a decedent’s estate, the process commonly referred to as “probate”—many people fear it is daunting and complicated, but at Dine Elder Law, we can help you navigate through the murky waters.
What is Probate?
Probate is the way by which your estate is administered legally after you die. This process allows you to transfer your estate in an orderly and supervised manner. Any debts and taxes must be paid before your beneficiaries receive their inheritance. Many people think that probate applies to you only if you have a will. That is not the case. Your estate will be probated whether or not you have a will.
- With a valid will: If you have a valid will, then your will determines how your estate is transferred during probate and to whom.
- Without a valid will: If you don’t have a will, or if you die partially intestate, where only part of your estate is covered by a valid will, the laws where you live specify who gets what parts of your estate
If a decedent had a will, and the decedent had property subject to probate, the probate process begins when the executor, who is nominated by the decedent in the last will, presents the will for probate in a courthouse in the county where the decedent lived, or owned property. If there is no will, someone must ask the court to appoint him or her as administrator of the decedent’s estate. Often, this is the spouse or an adult child of the decedent. Once appointed by the court, the executor or administrator becomes the legal representative of the estate.
The Four Basic Steps to Probate
- File a petition and give notice to heirs and beneficiaries.
As described above, the probate process begins with the filing of the petition with the probate court to either (1) admit the will to probate and appoint the executor or (2) if there is no will, appoint an administrator of the estate. Generally, notice of the court hearing regarding the petition must be provided to all of the decedent’s heirs and beneficiaries. If an heir or beneficiary objects to the petition, they have the opportunity to do so in court. Also, generally, notice of the hearing is published in a local newspaper. This is to attempt to notify others, such as unknown creditors of the decedent, of the beginning of the proceeding.
- Following appointment by the court, the personal representative must give notice to all known creditors of the estate and take an inventory of the estate property.
The personal representative then gives written notice to all creditors of the estate based upon state law; any creditor who wishes to make a claim on assets of the estate must do so within a limited period of time (which also varies by state).
An inventory of all of decedent’s probate property, including real property, stocks, bonds, business interests, among other assets, is taken. In some states, a court appointed appraiser values the assets. When necessary, an independent appraiser is hired by the estate to appraise non-cash assets.
- All estate and funeral expenses, debts and taxes must be paid from the estate.
The personal representative must determine which creditor’s claims are legitimate and pay those and other final bills from the estate. In some instances, the personal representative is permitted to sell estate assets to satisfy the decedent’s obligations.
- Legal title in property is transferred according to the will or under the laws of intestacy (if the decedent did not have a will).
Following the waiting period to allow creditors to file claims against the estate, and all approved claims and bills are paid, generally, the personal representative petitions the court for the authority to transfer the remaining assets to beneficiaries as directed in the decedent’s last will and testament or, if there is no will, according to state intestate succession laws. If the will calls for the creation of a trust for the benefit of a minor, spouse or incapacitated family member, money is then transferred to the trustee. Unless the beneficiaries of the estate waive the requirement as allowed under some state laws, the petition may include an accounting of how the assets were managed during the probate process. Once the petition is granted, the personal representative may draw up new deeds for property, transfer stock, liquidate assets and transfer property to the appropriate recipients.
In short, a properly drafted will, updated regularly to account for life changes, organized records of debts, personal property and other assets simplifies the probate process. The easier it is for your personal representative to trace your steps after you’re gone, the easier the process.
Probate Attorneys’ Fees
Florida is one of the few states that sets out, in its statutes, lawyers’ fees that are presumed to be reasonable for estates of a certain value. (Fla. Stat. Ann. § 733.6171.) The fee is based on the value of the assets that go through probate, plus any income they earn during the probate proceeding. The value of homestead property is not counted.
Florida attorneys aren’t required to follow the statutory fee schedule, and many acknowledge that it often leads to inflated attorney news. Especially if the estate you’re handling is greater than $100,000, at Dine Elder Law, we will quote you a flat fee or work at an hourly rate.