Many times here on the Weidner Law blog we have talked about the probate process covering everything from what it is to what you should do when faced with it as the executor of the estate. Today we’re going to talk a little bit about your questions when it comes to probate. Specifically, we’re going to be answering five of your most commonly asked probate questions.
The Probate Process: 5 Commonly Asked Questions About Probate
1. Do I Have to Get An Attorney?
This is a question that we have actually answered a few times before, but it keeps coming up for new clients, so we thought that we’d recap the answer just in case you didn’t get it the first time.
Whether or not you need to hire an attorney when going through the probate process depends mostly upon the state where you live. For example, in the state of Florida, all cases that go through probate must be represented by a legal attorney. This is for the sake of the deceased, the executor of the estate, and the heirs of the estate because it prevents any unnecessary complications and ensures that every step of the process is carried out in accordance with the law. The last thing that anyone wants is to have probate errors occur and to have to deal with rectifying those problems later down the road when the necessary documentation may not be available to correct the problem.
2. Does Having a Will or Not Having a Will Help Me to Avoid Probate?
No and no.
Having a will or not having a will does not stop the probate process. Probate is the time when all of the loose ends of the estate are tied up, when deeds are transferred, and the legal system ensures that the wishes of the deceased are carried out properly. The will is what dictates what happens to the property of the state once the deceased has passed away.
If someone dies without a will, the probate process can still take place and the court will use intestate law to establish who receives what from the estate. This is something of a strange process because it uses heredity to establish who receives what but does not necessarily take into account the strength of those relationships.
3. Couldn’t I Just Move Into The House Anyway?
One question that people often ask is if they can just move into the house of the deceased without going through the probate process because they know that the house was being left to them. The answer is no. If you were to move into that house, there is no legal proof that you are the homeowner and until you complete the probate process there will not be any proof that you are the legal homeowner. This can cause all kinds of problems, for example, taxes will still assess on the property under the original owner’s name. This is a problem because if you don’t get notifications of taxes due because they were being sent to a P.O. Box or sent electronically to the owner of the house, you will have no idea that a payment is due and it will go into arrears. If this happens it could wind up that you lose the house completely because of back taxes owed.
4. Can I Fight Against a Will That Seems Unusual?
If someone has passed away and left a will that you believe to be invalid, you can fight that will in probate court by letting the judge know that you have good reason to believe that the will that was presented during probate was invalid under state law. For example, if you think your mother’s private nurse conned her into leaving all of her jewelry to her rather than to family members, you may be able to fight against the will in court if you can prove that your mother was conned into signing the will that was filed. One way that this is proven is often by the production of a previous will which differs starkly from the one that was admitted into the courts. For example, if your mother originally left all of her belongings to you and your siblings in the original will, but in the copy that was submitted to the court by your mother’s nurse, not a single thing was left to you.
If you do fight this and are able to prove that the will was falsified or that your mother was coerced, the judge will dismiss the invalid will by deeming it inadmissible.
5. How Long Will Probate Take?
There are many factors that go into determining how long the probate process will take, so the answer really depends on a few different factors. For example, did the deceased have a lot of creditors who are making claims against their estate? If so, this could drag out the process and make it much longer than a more simple probate case where the deceased had no creditors and very specifically lays out their estate plans in a legal last will and testament.
One of the best ways to gauge how long your probate process will take is to talk to your attorney. Your probate attorney will know the facts of the case and be able to give you a more accurate picture of how long the process should take in your specific situation.
Are You Daunted By The Probate Process?
If you are involved with a probate process at the moment in the state of Florida and you are in need of guidance and advice from a reputable real estate attorney, give us a call here at Weidner Law today at 727-954-8752 and let us know how we can help you!