Should I Hire A Lawyer For Probate?
Florida probate law refers to the person who carries out the administration of a decedent’s estate as a personal representative. A Florida personal representative, the equivalent of an executor in some other states, has several weighty responsibilities in ensuring that the individual whose final affairs they are tasked with resolving. In most instances, the rules of Florida’s probate courts will require a personal representative to work with a lawyer for probate. These rules allow for some exceptions, but there may also be reasons to work with a lawyer for probate matters even if one of the exceptions applies. The estate planning and probate team at Loughlin Law, P.A. has experience in a wide variety of probate matters, both simple and complex. Give us a call at 561-559-6214 and schedule a consultation to determine whether you need a lawyer for probate in your situation and what steps you will need to take to start the Florida probate process.
Can an Estate Be Settled Without Probate in Florida?
Probate is the typical process for concluding a deceased person’s affairs by resolving any outstanding debts and then carrying out the terms of the individual’s Last Will and Testament. If the individual dies intestate, meaning with a valid Will, then after the decedent’s creditors have been satisfied, any remaining assets will be distributed according to Florida’s rules for intestate succession.
Role of the Personal Representative in Probate
A few special considerations, such as the elective share of the surviving spouse, can sometimes override specific terms of an otherwise valid Will, and occasionally complications can arise if a beneficiary has predeceased the testator. However, if a decedent died testate, then the role of the personal representative in formal probate will be first to satisfy the decedent’s debts and then to see that the remaining assets are distributed according to the wishes expressed in the decedent’s Will.
Summary Administration vs. Formal Probate
Sometimes the personal representative’s job may be simplified by a process known as Summary Administration. Summary administration is only available by petition, although the individual filing the petition for summary administration does not typically need to do anything to secure approval beyond showing that the decedent’s estate meets Florida’s criteria for the summary administration process to avoid probate.
These criteria are outlined in Fla. Rev. Stat. § 735.201, but the total value of the estate subject to probate generally cannot be more than $75,000, and none of the circumstances that trigger a requirement for direct administration under Chapter 733 can apply. A probate lawyer with Loughlin Law, P.A. may be able to help you determine whether it makes sense to file for summary administration based on the particulars of the estate your loved one left behind.
Do You Have To Hire a Lawyer for Probate?
Rule 5.030 of Florida’s Probate Rules requires the personal representative of a decedent’s estate to secure the services of an attorney licensed to practice law in Florida to advise them during the probate process under most circumstances. There are a few notable exceptions:
- Personal representatives who are themselves admitted to practice in Florida may act as their own representatives.
- If the personal representative is the “sole interested person” (usually this means the only party with an expectation of inheritance or a known claim on the estate), then he or she is not required to hire a lawyer for probate.
- Summary administration is generally exempt from this, as well as some other requirements of the formal probate process.
Even if you are not legally obligated to work with an attorney throughout the probate process, you may wish to consult with one before you begin.
What Kind of Lawyer Should I Hire for Probate?
If you need to hire a lawyer for probate in Florida, or you think you may need the services of an attorney even if you are the sole interested party or you plan on taking your loved one’s estate through summary administration, it is natural to have questions about the type of law this attorney practices and what you should look for when hiring a lawyer for probate. Three considerations you may find it helpful to keep in mind are:
- Whether your loved one had an existing relationship with an attorney, this lawyer will make the lawyer familiar with the details of the individual’s estate
- The distinction between estate planning and probate
- Physical proximity to the decedent’s home county
These factors can interrelate, but identifying and considering each of them separately can often make it easier to sort your priorities and develop a plan for finding the right lawyer for probate based on your unique situation.
Existing Relationship With an Attorney
If your loved one has left a valid Will that nominated you to be the personal representative of their estate, he or she likely created this document with the assistance of an estate planning lawyer. Sometimes estate planning services are one-and-done affairs, especially with smaller estates where there are no complex asset management strategies demanding highly customized estate planning tools and frequent monitoring. In these instances, your loved one may have spoken with the attorney who assisted them in preparing their estate plan only a handful of times, and any benefits to hiring the same lawyer for probate may be limited.
In other instances, however, the decedent may have had a years-long ongoing relationship with a trusted estate planning attorney who, as a result, is familiar with the individual’s assets and the way they were organized before the person’s death, as well as being aware of the terms of their Will. In these situations, there is no legal obligation to hire the same lawyer for probate, but if your loved one’s estate planning attorney also practices probate law, it may be convenient to do so.
Estate Planning vs. Probate
To individuals planning and executing estate plans, it is easy for estate planning and probate to seem like a single type of legal practice. In fact, the development of legal documents that together form a comprehensive estate plan and the fulfillment of legal (and financial) obligations carried out during the administration of a decedent’s estate are two related, yet distinct, aspects of a longer process that involves distinct parties and distinct legal services at each stage of its progression.
Many estate planning attorneys also handle probate cases, but some do not. If your loved one had a relationship with an estate planning attorney you know is in a position to be familiar with the way the individual’s affairs stood at the time of his or her death, but the attorney does not personally deal with probate matters, you may consider asking him or her for a referral to a probate lawyer in the county where the decedent was domiciled at the time of their death.
County
The county location is perhaps more a convenience than a necessity. Generally speaking, an attorney admitted to the practice of law in Florida may serve as a lawyer for probate proceedings anywhere in the state. If you anticipate multiple filings, or if your loved one left behind significant debts held by local creditors or substantial real property in their home county, then working with an attorney whose office is located in or near the county where most of the legal matters will be handled may make some aspects of the process easier. If you anticipate needing multiple conversations with a probate lawyer thanks to the complexity of your loved one’s estate, and you do not personally live in the decedent’s county of record, then you will need to weigh the potential advantages of working with an attorney close to you vs. working with one close to the property involved in the individual’s estate.
Contact a Florida Estate Planning Attorney Today
If you have been designated as the personal representative of a loved one’s estate in Florida, you are likely to have several questions about the Florida probate process. Formal probate can be especially perplexing to individuals who are encountering its legal requirements for the first time, but the truth is that even individuals who have served as personal representatives in the past can still sometimes be surprised by the twists and turns a specific case can take. The potential for unexpected complexities to emerge during the administration of a decedent’s estate is just one of the reasons why Florida law requires a personal representative to work with a lawyer for probate under most circumstances.
Even if you are expecting your loved one’s estate to avoid formal probate by qualifying for summary administration, you may find it helpful to discuss the situation with a Florida probate lawyer, whose experience handling similar matters will often put them in a position to advise you on what to expect in light of the specifics of the estate. Reach out to Loughlin Law, P.A. to schedule a consultation by calling 561-559-6214 today.
