The death of a family member or someone that you care about is a tough thing to experience. It’s a time when everyone is emotional, stressed out, and otherwise off their normal disposition. Handling matters of the law after a death is something most people don’t want to consider, but it’s important. This is especially true when dealing with probate and the probate process. The probate is a process that involves authenticating the will of a deceased person through the local court. This is done so that the estate and assets could be distributed to the rightful owners after the payment of debts and taxes from the estate. There are plenty of aspects regarding the probate process, some facts, and things to consider about the process include:
The probate process has special requirements and notes that a will is executed under the specific laws. It also requires that the property be distributed under the estate’s specific probate codes. Should the deceased not have a will, the decedent becomes “intestate” and the court then takes over the responsibility to distribute the property to the rightful owners, following the laws set by the court and county.
When there is an absence of a will, the probate process becomes rather lengthy. This is because the court must assign the estate a legal representative. This court representative then takes over to properly distribute the property. This is done after a careful assessment of the owners and the creditors of the property, as well as after any debts or taxes must be paid. This process becomes more drawn out as the court finds a representative, and then as the representative works to properly manage the case and situation.
While the term “probate process” often sounds daunting and confusing, the actual process and what it achieves is much more straightforward. The probate is a court process of changing the title on assets. This means that the probate is essentially just a technical way of saying the transfer of assets.
Once someone has died, if they own bank accounts, investments, real estate, or other assets in their own name, nobody can gain access to these until the court has appointed a Personal Representative. This Personal Representative is then able to go change the name on the accounts to the name of the estate. They are then able to manage the accounts, such as selling investments, paying owed dues, distributing the accounts properly, and more.
Even when managing probate in Florida, for instance, not all assets need to be probated. For instance, if a husband and wife have a joint bank account, and one of them dies, the other spouse will then automatically retain full ownership of the account, no probate required. In relation, if a deceased spouse left an IRA, 401K plan, life insurance or something else, and the other spouse was named as the beneficiary, the surviving spouse does not need to go to probate court to retrieve access to those assets. If a beneficiary is named within the will or within the account, no probate is required. However, should the account be in only one spouse’s name, or the named beneficiary is no longer living, then those assets will be probated. If you live in
The probate process can vary by state, and Florida is no exception. Like any court or legal proceeding, the amount of time the process requires may become somewhat lengthy. In Florida, all claims must be filed within three months of the date that notice to creditors was first published, but not less than thirty days after known creditors have been provided with notice. This usually means that it’s impossible to close the estate in less than four months. A reasonable timeframe is usually around six to eight months for most estates of average size.
The cost of probate will depend on your county and your lawyer. The cost also varies depending on the size and complexity of the estate. For example, estates valued at $40,000 or less usually cost around $1,500 to handle. Whereas an estate valued between $100,000 and $900,000 will usually cost about 3% of the estate’s value. These fees and total costs will vary.
While you may not be able to avoid probate while alive in some cases, it is possible to avoid it by planning properly for your death. Creating and funding a Revocable Living Trust as part of your estate plan is a great way to pass your assets to the intended beneficiaries outside of probate. This allows the maker of the Trust to remain in full control during a lifetime, and then at death, the assets are immediately available without the need for probate. It’s also worthwhile to investigate getting a Power of Attorney, a Health Care Proxy, and also making sure that you update your will regularly. When you plan ahead, avoiding putting your loved ones through the probate process is easier than you’d imagine.
The probate process is sometimes lengthy and complicated, including in the state of Florida. It’s recommended that you plan properly for your death, and to try and take care to avoid entering probate while you’re alive. However, should you face having to deal with the probate process due to the death of a loved one, it’s always a good idea to understand the process as well as you can, such as by reading about these six facts and hiring a good attorney to help you along the way.
