When a person dies and leaves a Last Will and Testament dictating the distribution of their assets, in most cases their estate must still go through probate. Probate wraps up an individual’s affairs, including paying off debts and distributing assets to the beneficiaries as the will directs. When planning a will, the estate maker, also called the grantor or testator, usually chooses an executor of the estate to carry out, or “execute,” the directives set out in the will. If you have questions about the estate planning process or the legal requirements for probate, an experienced estate planning attorney at Loughlin Law, P.A., may be able to answer questions and help you navigate the complex process. Please call (561) 677-8384 today to schedule a consultation and learn more about the procedure to probate a will.
What Is Probate?
Probate is the legal process that includes validation of the will and carrying out the decedent’s final wishes. The legal process is a mechanism to protect the beneficiaries and settle disputes that arise over the estate. According to The Florida Bar, probate is the court-supervised procedure of identifying all the assets and property of the deceased, paying off any outstanding debts owed at the time of their death, and distributing the remaining assets of the estate to beneficiaries (named in the will) or heirs (the persons who receive portions of the estate by right of kinship in cases when there is no will, or the will is found to be invalid).
The estate assets also generally pay for the probate proceedings and funeral expenses before distribution. Probating a will involves the following steps:
- Verification and validation of the will by the probate court
- Inventory of the decedent’s property, including appraisals if necessary
- Inventory and payment of outstanding debt and taxes
- Distribution of the assets and property to the beneficiaries as per the grantor’s final wishes
After the individual dies, the person possessing the will has ten days to file the legal document with the probate court to initiate the process.
What Is a Valid Will for Probate?
The person creating the will must ensure they follow Florida’s legal process and that the document includes the required information to ensure validity. According to the 2022 Florida Statutes, a legally binding will must meet the following criteria:
- The will must be in writing and include all the required information under Florida law.
- Only a competent person can create a valid will, meaning they must be over 18, or an emancipated minor, and be of sound mind.
- The testator and two witnesses of sound mind must sign the will, and everyone must sign the legal document at the same time and in the presence of one another.
How To Write a Valid Florida Will
There is no exact verbiage or restrictions for writing wills barring the will-maker being competent, and the legal document contains the necessary signatures. The estate owner can create a handwritten or typed will however they choose, distributing the assets as they wish.
Why Would the Court Invalidate a Will?
Undue influence is the most typical challenge to the validity of wills. Undue influence refers to a type of manipulation that involves persuading or coercing an individual to diminish their willpower. In this context. persuasion typically means that the person wielding undue influence is exerting effort to induce the testator to write the will and distribute their assets in a way that benefits the person influencing them.
Potential signs of undue influence include the following:
- Diminished mental capacity made the estate owner vulnerable to coercion
- The individual isolated the testator from their loved ones during the period before they wrote the will
- A sudden change from prior estate plans near the end of life
- The changes significantly benefit the beneficiary close to the testator at the time of modification
- Inconsistent statements from the decedent
The court could also invalidate the will when family members challenge the legal document for other reasons, or if the document lacks the information required by Florida law.
Do All Florida Wills Need To Go Through Probate?
There is no legal requirement in Florida to probate a will. However, if the grantor did not plan and arrange for their estate to avoid probate, there is no other way for the beneficiaries of the property and assets to obtain legal ownership. Florida estate laws allow the beneficiaries to own property in the decedent’s name if they continue to pay taxes. However, they do not have the legal authority to sell or transfer the property to another party.
Does Florida Have a Minimum Amount Needed for Probate?
Estates of up to $75,000 may skip the formal probate process and go through summary administration under Florida probate laws. Summary administration is a quicker and more straightforward alternative.
What Assets Avoid Probate in Florida?
Under Florida probate laws, some assets are legally exempt. Some common examples include the following:
- Revocable trusts
- Joint bank and retirement accounts
- Designated beneficiaries
- Transfer on death accounts, such as life insurance policies
- Tenancy by entireties, as accounts owned jointly with a spouse, as these will automatically pass to the surviving owner
- Vehicles and household furniture and appliances
- A Florida homestead is exempt from creditors and not part of the probate estate
A qualified estate lawyer at Loughlin Law, P.A. may be able to answer more specific questions about estate planning and the procedure to probate a will.
What Happens if You Don’t Probate a Will?
When the executor of an estate does not probate a will, there is no court oversight to distribute the assets. Probate protects the beneficiaries and resolves disputes. Beneficiaries will need to resort to litigation to assert their legal rights if disagreements arise over the division of the property. Further, probate ensures that the estate pays the decedent’s debts and taxes. Skipping probate could lead to litigation with the creditors, potentially resulting in payments of additional legal fees and interest on the outstanding balances.
Call an Experienced Estate Planning Attorney To Schedule a Consultation Today
Probating a will is the court-supervised process of validating and approving a will and allowing the payment of debts and distribution of assets to proceed. While there is a system in place to keep probate as straightforward as possible, sometimes unforeseen challenges do arise, and it can be overwhelming for the executor of an estate to navigate the process without legal guidance. If you need help carrying out the process or have questions about the steps required to probate a will, schedule a meeting with a seasoned estate planning lawyer at Loughlin Law, P.A., at (561) 677-8384.
