As a probate attorney Fl residents can count on, here at Weidner Law, we believe that it’s not only important to have an attorney who is reputable, but it’s also important for you to familiarize yourself with the probate process so that you can work for yourself too. Today we’re talking about just a few probate concepts that it’s important for you to be familiar with when you are going through probate court.
Probate Attorney Fl Explains 6 Probate Concepts You Should Know
1. The Different Types of Probate
While we refer to the “probate” process, there are actually different types of probate.
Under Florida law, there are four types of probate – Formal Administration, Summary Administration, Ancillary Administration, and Disposition without Administration.
Formal administration is generally what people are talking about when they talk about “probate”. Formal probate can take a considerable amount of time to complete (sometimes years!) or it can take just months. Formal probate is a complex process, but you can learn more about the probate process in our post on the topic here: Florida Probate Guide.
Summary administration occurs when an estate has less than $75,000 not including exempt assets like the homestead and the decedent did not have any outstanding debts. Summary administration can also take place if the decedent has been deceased for 2-years or more. Summary probate is a much faster process, once the court decides that the estate is eligible, they give the go-ahead for the distribution of assets to the beneficiaries of the estate.
Ancillary administration happens when the deceased person owned real property in Florida, however, they were not a resident of Florida when they died. When the probate process takes place in the person’s state of residence, the ancillary administration process provides the legal authority for the property in Florida to be transferred. The executor of the estate will then be appointed as the executor in Florida also and the ancillary probate takes place in parallel with the primary probate proceedings.
Disposition Without Administration is actually a lack of the probate process altogether but it is seldom utilized because it is applicable in only certain situations:
- Personal property exempt under 732.402; (Household furniture, furnishings, and appliances up to a net value of $20,000 as of decedent’s death and up to two motor vehicles);
- Personal property exempt from the claims of creditors under the Constitution of Florida; and
- Nonexempt personal property whose value does not exceed the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.
See Section 735.301, Florida Statutes.
2. All Assets Do Not Have to Go Through Probate
When the probate process takes place, the executor of the estate is responsible for taking inventory of the assets of the deceased and cataloging those assets which are considered “probate assets”. Under Florida law, not all assets must go through probate and they can be directed straight to the beneficiary. These assets include life insurance proceeds, some types of jointly held property, and trust assets.
3. A Last Will and Testament Isn’t Always the End All Be All
The last will and testament that is written by the decedent is supposed to be a final directive of the wishes of that individual, however, a last will and testament can be challenged. If any of the beneficiaries of the will believe that the last will and testament is not a valid document, they can formally contest the document through probate court. When a will is contested, the probate process is put on hold while the matter is investigated. If the court finds that the last will and testament in question is not valid the court initiates a search for a valid last will and testament. If a valid document is not found, the courts must then follow the state intestate succession laws.
4. Probate Does Not Require a Last Will and Testament
This is perhaps best exemplified by the example above.
Many individuals die each year without a last will and testament in place. When this happens, this does not prevent the estate from going to probate. A lack of last will and testament simply means that the court will handle the estate according to state intestate succession laws.
5. Probate is Not Free
The probate process is not free, however, it is required in most cases. This means that you have no choice but to pay the cost of probate. The cost of probate depends upon the type of probate, the size of the estate that is being probated, and any extenuating factors that may come into play.
Probate costs can be particularly high if there is no last will and testament or if the document is being challenged by beneficiaries of the estate. This is why it’s beneficial to hire a probate attorney to help with the probate process because it helps to speed things up!
6. Probate Isn’t Just For the Deceased
While we tend to think about probate as being a process that takes place after someone dies, the probate court also comes into play when someone is incapacitated. If someone becomes incapacitated and has no durable power of attorney and health care proxy in place, someone must petition the probate court to be named as the conservator or guardian of that individual. A conservator is someone who becomes responsible for the financial matters of the incapacitated person whereas a guardian is responsible for decisions that relate to the individual themselves, for example, in regard to their healthcare.
Are You In Need of a Probate Attorney Fl Trusts?
If you need a reputable probate attorney Fl trusts with their probate needs, Weidner Law can help. Since inception, Weidner Law group has fought for consumer rights, aided Floridians in the probate process, represented clients in their real estate needs and much more. Find out more about Attorney Matt Weidner on his biography page.