Probate: mix in the upsetting event of suffering the loss of a loved one with having to handle the multitude of details of settling their final affairs. The last thing anyone wants to do is fight with family members, creditors, the IRS, business partners, or even the probate judge. For a novice, navigating the wilderness of a probate estate from beginning to end can be a daunting task, fraught with traps for the unwary. As seasoned professionals, we can be there to help see to it that the estate passes smoothly into the right hands, no matter the size of the estate. Also, we keep our eyes on the ball when it comes to tax avoidance and tax minimization in the process so that the maximum amount of wealth is passed to the heirs as possible under the law.
Probate is a court-supervised process by which property of a decedent is retitled in the name of the beneficiaries and creditors are paid. The person in charge of this process is the Personal Representative (many states, other than Florida, call the person the "Executor"). The person who is seeking to be appointed Personal Representative needs to hire an attorney to assist them with the court procedure if they are not both the sole beneficiary and sole named Personal Representative (Rule 5.030, Florida Probate Rules).
It seems that many laypersons think that simply having a will avoids probate. Unfortunately, that is not the case. A will simply tells the Probate Judge who should receive the assets and who will oversee distributing them as Personal Representative. Likewise, a person cannot avoid probate by failing to draft a will. The state of Florida has written a will for those who do not have one and need to go through Probate. It is called "Intestate Succession," giving you no control over who you leave your assets to (you or your heirs may very much dislike the results).
The probate court has jurisdiction over both the Personal Representative and the assets of the decedent. The primary purposes of probate are to:
Probate usually begins with the will being admitted to the probate court and the Personal Representative being granted "Letters of Administration." Probate ends after all just taxes are paid, creditors are properly paid, and assets are accounted for and distributed as provided in the will. In certain instances, administering an estate through probate may be appropriate, even desirable over a trust administration, given the orderly nature of probate. Why? The probate process is overseen by a judge who ensures that the will maker's wishes are carried out. Probate also can be very efficient and effective when the estate is well-organized prior to death, minor children are involved and/or sensitive issues like family members with special needs, or even substance abuse issues affecting one or more heirs, are at stake.
As with any legal proceeding, there are technical aspects to probate administration that an experienced Probate Attorney would be familiar with: beneficiaries and creditors need to be notified and legal notices published. Personal Representatives need to be guided in how and when to distribute assets and how to take creditors' rights into account. A Petition to Appoint a Personal Representative may need to be filed and Letters of Administration obtained. Homestead property, which follows its own set of unique and complex rules in Florida, must be dealt with separately from other assets. There are time factors involved in filing and objecting to claims against the estate. There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. Real estate may need to be sold to ensure correct distribution of assets according to the estate plan or merely to pay debts. Estate and income taxes must be considered if the estate exceeds certain thresholds. Rest assured that all legal tax minimization or avoidance techniques will be pursued. We have helped many Personal Representatives and Trustees avoid hundreds of thousands of dollars of taxes in the last few years. Other assets may simply need to be transferred from the decedent to his or her heirs.
Should it not go as smoothly as described above, our experience includes handling issues arising from will contests, breach of trust, elective share disputes, guardianship and guardianship disputes, fiduciary conflicts of interest, formation, modification and termination of trusts, prudent investor rules, accounting controversies, fee disputes, agency under powers of attorney and health care surrogate designations, and other disputed claims. Our clients include businesses, families, individuals and charities.
No one probate estate is executor exactly like another and our experienced attorneys and staff can guide the Personal Representative through the various steps and duties required for an efficient and effective probate. We have been through that wilderness before and are familiar with the terrain.
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