When it comes to probate in Florida it’s not unusual to have questions. Probate can be quite a complex process between the nuances of the law and dealing with grief concurrently. As a top probate attorney firm in Florida, Weidner Law knows how important it is for you to understand what is happening while going through probate, so today attorney Matthew Weidner is answering some of your frequently asked probate questions.
Probate in Florida: Answers to Your Frequently Asked Questions
Q: Do I Have to Go Through the Probate Process?
A: Probate is a procedure that is designed for beneficiaries to legally take over ownership of certain assets as determined in the last will and testament of the deceased. Without probate, beneficiaries have no legal ownership of these assets unless the decedent consulted with an estate planning attorney to make state-specific arrangements to avoid probate.
It is possible to avoid probate in some circumstances if certain conditions are met (and these conditions vary from state to state). In Florida, probate can be avoided on a property that has been passed to beneficiaries via a “Ladybird Deed” and on specific accounts that have been designated as “payable on death” accounts or “transfer on death” accounts. If the decedent had a revocable living trust probate may also be avoided.
Q: Why Does Probate Take So Long?
A: Probate can be a process that takes just a few weeks or it can be a rather lengthy process that takes over a year. The length of time it takes to probate an estate is dependent on a variety of factors including the size of the estate, the type of probate, the complexity of the will, whether the will is contested in probate court, the difficulty involved with getting in touch with beneficiaries, etc. As you can see, with so many factors influencing the length of time it takes to go through probate it’s no wonder that the length of time probate takes can be so varied.
Q: Why Do Creditors Have to Be Notified of the Probate Process?
A: In the state of Florida it is required for the estate executor to publish a Notice to Creditors and mail a copy of the notice to creditors who are “reasonably ascertainable”. In most circumstances, creditors have three months following the publication of notice to make any claims against the estate to cover debts owed by the deceased.
The purpose of the notice to creditors is to put a time limit on how long after the decedent’s death creditors can pursue an estate for debts owed to them by the deceased. Without the notice to creditors and the legal underpinnings of this notice, creditors could feasibly continue to pursue claims long after the decedent’s death. With the Notice to Creditors process, however, any creditor that attempts to file against the estate of the deceased for a debt owed to them after the three-month deadline will be denied. There are few exceptions to this rule.
Q: Does an Executor of an Estate Have to Hire Other People to Help with their Responsibilities?
A: It is not mandatory for an executor of an estate to hire a probate attorney or an accountant to assist with the duties required of them for the probate process, however, it is recommended. The responsibilities of the executor of the estate can be complex and varied and since they change from state to state, it’s always best to have an attorney and financial advisor on hand to ensure that you are following the necessary laws pertaining to probate.
Q: What Happens if I Dispute a Last Will and Testament During the Probate Procedure?
A: A last will and testament can be disputed by a spouse, children or people who are mentioned in the will or a previous will. This dispute should be made at the probate hearing and can only be made for very specific reasons. If a will is disputed, the probate proceedings will come to a halt and the probate judge will set a hearing for you to present your case. The judge will then decide whether you have a case or not. If the judge decides in your favor, the search for a valid Last Will and Testament will begin. If the judge decides against you, the probate process will go on as it would have prior to your raising the dispute.
Q: What Happens if there is No Last Will and Testament?
A: If someone dies without a valid last will and testament in play what happens next depends on the state laws. When someone dies without a will in place, they are referred to as being intestate. When this happens in the state of Florida, assets of the estate are distributed to the heirs of the deceased in the order of priority set out by the courts of Florida. This order of priority of heirs is outlined in Part I, Chapter 732 of Florida Statutes
- If the decedent was survived by a spouse and no other living descendants, the surviving spouse receives all assets of the probate estate.
- If the decedent was survived by a spouse and one or more living children shared with the spouse AND the surviving spouse has no other living descendants not shared with the decedent, the surviving spouse receives all assets of the probate estate.
- If the decedent was survived by a spouse and one or more living children shared with the spouse, but the surviving spouse also has additional living children not shared with the spouse, the surviving spouse receives one-half of the probate estate, and the children shared with the spouse receive the remaining half.
- If the decedent was not married at the time of death but was survived by one or more children, those children will receive all assets of the probate estate. If there is more than one child, the decedent’s probate estate will be divided among them according to Florida law. If a child is deceased but that child had their own children, any assets that would go to the deceased child will go to the grandchild instead.
- If the decedent was not married at the time of death and had no living children, the decedent’s probate estate will go to the decedent’s surviving parents. If the decedent’s parents are no longer living, it will go to any surviving siblings of the decedent. If no siblings exist, other more extended heirs may be named as beneficiaries.
Do You Have Questions About Probate in Florida?
If you have questions about probate in Florida or are in search of a reputable probate attorney in Florida, Weidner Law can help! Just pick up the phone and dial 727-954-8752.