A sound estate plan protects beneficiaries from the headache of sorting problems out while mourning the recent loss of a loved one. However, probating an estate and executing a Last Will and Testament is not a simple process for most people to understand, and the many popular myths in circulation can make the legal requirements even more confusing. Separating misinformation from facts is important preparation for planning your estate and ensuring the executor named in the Will carries out your final wishes. Call an experienced estate planning lawyer at Loughlin Law, P.A., by calling (561) 677-8384 to learn more about probate court myths and realities.
Myths About Wills and Probate
Countless popular myths exist surrounding the Last Will and Testament, often referred to as simply a Will, and the probate process. While the procedures may be complex, the untruths are among the most significant factors that cause misunderstandings and confusion. Some of the most common myths about Wills and probate include the following:
The Probate Process Takes Years To Complete
Probate does not take years to resolve in most cases. There is one court-mandated delay in the process to allow creditors with interest in the estate the time to file a claim to collect payment. According to the Florida Probate Code: Administration of Estates, during the administration process, the executor of the estate must file a notice to creditors in the newspaper and send a copy of the notice to creditors of whom they are aware. The known creditors with interest in the estate then have 30 days to file a claim in court against the estate to recover the outstanding debt, and unknown creditors have 90 days. After the statutory waiting period expires, the executor may move forward with probating the estate.
Probate Is Expensive
While there may be additional fees for certain estates, the average cost for probate fees is relatively low. The cost to probate an estate will depend on the size and complexity of the estate and whether litigation is necessary. In general, however, the cost of the administration of probate is a small percentage of the total estate value. Per the guidance provided in Florida Statutes § 735.201, the state also provides the option for a less expensive and quicker process called summary administration for smaller estates. While every estate has its own set of circumstances and total expenses do vary, some of the other costs to probate an estate could include the following:
- Court filing fees
- Bond fees for the executor
- Publication fees for the legal notice to the creditors
- Accounting fees
- Attorney fees
Executors and beneficiaries alike benefit from understanding the potential costs of probate early in the process.
A Will Always Has To Go Through Probate
There is an explicit legal requirement for the person in possession of the Will to file and record the Will within ten days of the individual’s death, but probating the Will is not mandatory. Further, probate laws do not require all assets to go through probate. Assets exempt from probate include accounts with designated death beneficiaries, property with joint ownership, and certain Trusts. Therefore, if the estate only contains those items and the Will merely reiterates how they are already disposed and names an executor to close out accounts, it may not require the court-enforced process of probate.
Avoiding Probate in Florida
There are ways that estate planners can help their beneficiaries avoid the probate process after their death. Some of the options to avoid probate in Florida include the following:
- The creation of revocable or living trusts and transferring of assets and property to the trust during life
- Property with joint ownership does not require probate as the surviving owner automatically owns the property after death
- Bank accounts with designated beneficiaries
- Transfer-on-death insurance policies
Small estates under $75,000 will automatically have the option for a more simplified option for probate administration. Avoiding probate can mean no court hearing appearances, filing legal documents, or ensuring compliance with state probate laws. However, it is crucial to remember that the processes are legal systems to provide a straightforward procedure and protect beneficiaries and creditors with outstanding balances.
Who Can Challenge a Will?
Florida probate laws allow interested persons to contest Wills. That includes named beneficiaries in the current or previous Will, creditors with interest, and heirs of the decedent. In other words, not everyone has the legal right to contest a Will; this right is generally reserved for creditors and persons eligible to inherit the estate assets under intestate succession laws. This typically would not include unmarried partners or friends of the deceased.
The individual seeking to challenge a Will must also show reasonable cause, and must convince the probate court that there are legal grounds for the challenge. These may include:
- Irregularities in the drafting and execution of the Will
- Lack of legal or mental capacity, such as a grantor under 18 years of age or of unsound mind at the time they wrote or signed the Will
- Undue influence, in which a third party is suspected of having manipulated the testator into writing or changing their Will to benefit the manipulator significantly
A qualified estate lawyer at Loughlin Law, P.A. may be able to answer questions about the probate court process.
Probating a Will vs. Intestate Succession
Most assets and property the deceased owned by themselves at the time of death are subject to probate in Florida. This is true whether the decedent had a valid Will in place or not. When a person dies without a Will, there is an alternate probate process called intestate succession. During that probate process, the court will ensure estate assets pay off outstanding debt, including taxes, then pass the remaining assets and property to the closest living relatives.
Call a Seasoned Probate Attorney Today To Schedule a Consultation
There are many misconceptions about probating an estate and Will in Florida. Unfortunately, many without experience or legal guidance do not understand the process. Knowing how the various probate procedures work and which assets and property do or do not have to go through probate can help you prepare an effective estate plan to protect your beneficiaries and ensure they understand and fulfill your final wishes. Schedule a consultation with a seasoned estate planning lawyer at Loughlin Law, P.A., by calling (561) 677-8384 for help with estate planning and to learn more about probate court procedures.
