Probate is the process in which the government facilitates the distribution of a person’s assets after their passing. During probate, a personal representative for the estate will pay creditors, address tax obligations, and distribute property to the beneficiaries as determined by the will or state law.
The probate process can be long and drawn out in some cases. However, the right estate plan could simplify the process for your loved ones and ensure your final wishes are adhered to.
The Beginning of Probate
As soon as a person dies, the assets they owned at the time of their death will become part of their estate. There are exceptions for assets that are co-owned by individuals who are still alive. For assets solely owned by a person at the time of their passing, they will typically go into the estate. Probate is the process in which these assets are distributed to the heirs.
The probate process is used to distribute these assets in cases where there are last wills and testaments. However, individuals who die without a will in place will typically also have their estate go through probate as well. In either case, a personal representative appointed by the Ninth Judicial Circuit Court of Florida will oversee the process.
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The Probate Process in Florida
The Florida Probate Code oversees the probate process. The process is similar whether or not a will is in place. If there is a will, the first step is to locate the original document. State law requires that the original is submitted to the court unless it has been lost or accidentally destroyed. If a person dies without a will, the family can file the petition immediately.
The process of initiating probate involves filing a document known as the Petition of Administration. If there was a last will and testament in effect, it should be included with the petition. After approximately 30 days, the court will issue Letters of Administration to the personal representative.
What the Representative Will Accomplish
Once appointed, the representative will make an accounting of the estate’s assets. They will identify the assets and determine which belong to the estate and which are held outside of the probate process.
After this stage, the personal representative must deal with the estate’s creditors. This step begins with something known as the Notice to Creditors. This formal notice is printed in a local newspaper once per week for two consecutive weeks.
The creditors have a limited window of opportunity to make a claim with the estate in an effort to recover what is owed to them. Once these claims are made, it is the personal representative’s role to not only pay the creditors but also settle any tax debt.
After Payment is Settled
Once all taxes and bills are paid, the personal representative must prepare an accounting for all of the beneficiaries. This account will explain the estate’s debts and assets and line out what will go to each beneficiary.
From there, it is the personal representative’s role to distribute these assets according to either state law or the terms of the will, depending on which one applies. If there are any challenges from beneficiaries, the process could drag on during litigation.
Once the assets have been distributed, it is time to close the probate case. This is done through a document known as the Petition for Discharge. Once the court enters the petition, the probate case is closed.
Avoiding Probate
Many estate plans endeavor to avoid the probate process entirely. Probate can be a long, slow process—even under the best circumstances. Other options outside of probate could ensure a decedent’s final wishes are addressed in short order following their passing. This could not only help their beneficiaries avoid the delays of probate but also many of the costs associated with it as well.
Numerous estate planning tools could make probate unnecessary. Placing assets into a trust could ensure they are passed on immediately upon your death without the need for probate court. The same is true for tools like payable on death contracts and life insurance policies.
Talk to an Attorney About Probate and Your Estate Plan
Whether you should develop a plan for your assets to avoid probate is only one of the important questions during the estate planning process. Your attorney could advise you of your legal rights and responsibilities under the law. They could also help you develop a plan that will limit the risk of delays or unexpected tax burdens for your loved ones following your passing.
To start developing the right estate plan for you and your family, call Bogin, Munns & Munns at (407) 578-1334.
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