Weidner Law is one of the leading St. Petersburg, Fl. probate attorney firms in the sunshine state. But what exactly is probate and why does it require an attorney? Let’s take a look…
What You Need to Know About The Probate Process From a St. Petersburg, FL Probate Attorney
What is Probate?
The term “probate” refers to the legal process of filing with the courts and validating a will or trust, determining heirs, paying debts of the deceased, and passing certain assets from a deceased person to their beneficiaries or heirs.
Probate takes place in probate court in the state of residence of the deceased or the state where the deceased owned the property and is governed by the laws of the state in question. So, if grandma passes away in Florida, probate is governed by Florida probate law.
Does There Have to Be a Last Will and Testament For Probate to Take Place?
No. While people often think of probate as a process that takes place when someone has left a last will and testament, it may also be necessary when someone dies without leaving a will.
When someone dies and leaves a will or trust, probate carries out the provisions of that will or trust.
When someone dies and does not leave a will, probate will step in if the deceased has property that is to be distributed under the law of inheritance.
When someone dies and leaves an account to a beneficiary who has already died, probate law requires that the account in question go through the courts so that the rightfully entitled beneficiary is given ownership of that account.
Do You Always Need a Probate Attorney?
Yes.
In Florida when probate takes place you must always have a probate attorney because “do-it-yourself” probate is not permitted under any circumstances.
Do You HAVE to Go Through Probate?
Yes…and no.
If the deceased person arranged their estate in such a way that probate can be avoided – for example through the use of a revocable living trust – probate can be avoided because the trust document serves to pass that property to the beneficiary.
If, however, estate planning was not done diligently then probate must take place in order for beneficiaries to obtain legal ownership of the property of the deceased. Now, the family of the deceased do not HAVE to go through probate but if they don’t. the property will not legally belong to them.
In the state of Florida there is a provision in probate law, however, that states that property can legally be owned by the descendant of the deceased without going through probate so long as that property is never sold and the descendant pays property taxes.
Why You Need That Probate Attorney
As if the “simple” explanations above weren’t enough to keep up with, there are many more provisions and provisos in state law that govern the probate process. These laws change based on individual states and if probate has to be moved to another state (ancillary probate) because the deceased owned property in a state other than the state that they lived in it only gets more complicated.
Have a headache yet? Don’t worry, that’s what your St. Pete probate attorney is for. An experienced probate attorney like those at Weidner Law are well versed in Florida state probate law and will make sure that you understand the process every step of the way.
What You Should Know About Florida Estate Planning and Probate Law
Even with a probate attorney on your side, there are a handful of things that you should know about Florida probate law (a few of which have been mentioned already.)
- To go through the probate process in Florida you MUST have a probate attorney, you cannot “do it yourself”.
- Proper estate planning with an attorney can help your family to avoid having to go through probate after you die.
- Handwritten or “joint” wills are not recognized by Florida law.
- Florida law also does not recognize orally declared wills or deathbed wills.
- If a last will and testament have been “lost” it is almost always considered to have been revoked by the person for whom the will was written.
- In the state of Florida once a couple have permanently divorced, or their marriage is divorced, dissolved, or annulled, any provision in the last will and testament of either party for their now ex-spouse is statutorily revoked.
- When an individual composes a new last will and testament, the new document must explicitly state that the previous will is revoked.
- An attorney can contest a will in Florida probate for a number of reasons, these include:
- The lack of proper formalities (the will was not drafted, signed, or witnessed properly)
- Lack of capacity (the writer of the will lacked the mental competency to make the will or understand the willing process)
- Undue influence (the writer of the will was coerced or compelled to execute their will through pressure from another)
- Insane delusion (when a will is made or changed based on a delusion that is obviously not true)
- Fraud.
- Probate can be avoided on property in Florida and a descendant can claim ownership of a property as long as they pay taxes on that property AND do not sell that property.
Do You Need to Hire a St Petersburg Fl Probate Attorney?
Do you need a probate attorney in the St. Pete, Florida area who will help you through the probate process?
Call Weidner Law today at 727-954-8752!
Are you looking for a trusted St. Pete Probate attorney who can help you to organize your estate to help your family avoid probate in the future?
Call Weidner Law today at 727-954-8752!
