WHAT IS PROBATE? DO I NEED A PROBATE ATTORNEY?
Through Probate, courts identify and verify a deceased individual’s assets. The law refers to deceased individuals as a “decedent.” If the decedent had a valid Will, the property is distributed per that Will upon validation by a judge. The Will must be admitted to probate in the court, if not it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. Without a valid Will, the judge must determine how to distribute the property under relevant Florida law. This process can be a lengthy, onerous, and costly.
Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s taxes are paid and creditors are paid if certain procedures are correctly followed.
WHAT ARE PROBATE ASSETS?
Probate assets are those assets owned in the decedent’s name only at death. Probate Assets also include those assets that were owned by the decedent and one or more co-owners which lacked a provision for automatic succession of ownership at death. Probate administration applies only to probate assets.
Examples of Probate Assets include:
Real estate property titled in the name of the decedent only, or in the name of the decedent and another person as tenants in common, is a probate asset (homestead property is an exception). However real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
Bank accounts or investment accounts in the name of the decedent only is a probate asset. While, a bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
AS life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset. However, a life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset.
Property owned by a married couple as tenants by the entirety is not a probate asset. Upon death the property automatically goes to the surviving spouse.
This list is only a list of some examples and not exclusive. It is intended to be illustrative only.
PERSONAL REPRESENTATIVE’S NEED AN ATTORNEY
If you have been appointed as the Personal Representative to administer the Estate in Florida, you could be personally liable for your failure to do so properly. One of many duties of the Personal Representative is the responsibility to pay amounts owed by the decedent or the estate to the IRS. Taxes are normally paid from probate assets in the decedent’s estate, and not by the personal representative from his or her own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid.
A Personal Representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys. The attorney for the Personal Representative advises the Personal Representative on the rights and duties under the law, and represents the Personal Representative in probate estate proceedings, not the beneficiaries of the probate estate.
The Personal Representative may choose to engage any attorney of their choosing, a provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding.
RIGHTS OF THE SURVIVING FAMILY AND NEED FOR AN ATTORNEY
A surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.
If the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.
For example, a surviving spouse may have the right to come forward to claim an “elective share” from the decedent’s probate estate in addition to possible rights to the decedent’s homestead property. Generally speaking, in Florida the elective share is 30 percent of all of the decedent’s assets, including any assets that are non-probate assets.
A surviving spouse and/or the decedent’s children may also have the right to a family allowance to provide them with funds before final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate.
This right to an elective share, family allowance and/or exempt property may be waived in a valid pre-marital or post-marital agreement. The existence and enforcement of these statutory rights require knowledge about the applicable laws and procedures and are best handled by an attorney. The attorney for the Personal Representative does not represent the interests of the family members, so family members may be best served with their own attorney to advocate for their rights under the law.
PROBATE IS BEST HANDLED WITH ASSISTANCE OF COUNSEL
Securing skilled representation and guidance is essential for families and Personal Representatives who are navigating the complex Probate process.