Probate 101: What You Should Know
The subject of Last Will and Testament, Estate Planning and Probate can be difficult conversations given the association with preparing for a death. However, understanding the importance of these documents and how they can assist a family before a time of grieving occurs, can eliminate unnecessary stress on family members during a difficult and challenging time.
Probate is how society “transfers assets” when someone has passed away. Due to the complexities of filing and completing the probate process, it is a good idea to hire a probate attorney well-versed in these matters. In Florida, most probate matters require an attorney to work with the personal representative. DSM Law suggests that families get to know them and the attorneys at the firm so that a family can be assisted in the best way possible.
Once a death has occurred, there are 6 probate steps that begin.
Filing for Probate
Filing for probate is the first step in having the courts confirm the existence or non-existence of a valid Will. A person who dies (known as a decedent in probate court) in ‘testate’ has left a valid and legal Will for the distribution of personal assets. If the person dies ‘intestate’, a valid Will is absent, and the assets are distributed to the heirs based on state law. In either case, the legal process of probate ensures the proper, legal distribution of the decedent’s assets.
A beneficiary is a person who has lawful right to claim a portion of the deceased’s assets. In addition to heirs, a probate filing may include creditors, banks or a commercial entity claiming debt. Part of the probate proceeding includes issuing a notice in the paper to demonstrate full attempts to notify any beneficiaries or creditors of the death. A hearing is then held to ensure that notice had been given to all persons having an interest in the estate, including, known and unknown creditors, of the estate.
This is a helpful part of probate since once an attorney is hired, all creditors are to communicate directly with the attorney. Also, creditors are barred from collecting once proper notice has expired and attorneys may also negotiate debt on behalf of the decedent.
Sale of personal property items belonging to the decedent, such as furniture and artwork can be accomplished without formality. Although, cars, boats, jet skis, etc. are considered personal property and require some transfer of title. Family members should always look for a memorandum of personal property in which the descendant designated specific individuals to receive certain items after death. If you have a valued piece of jewelry you want to give to your favorite niece, put it in writing and file with your Will. DSM Law includes such documents in the Family Binder provided to each of their clients.
Real Estate and Other Assets
The personal representative handling the probate has a fiduciary responsibility to sell any property for fair market value. Probate sales involve many formalities, so it’s critical to have a legal representative to manage the sale and distribution. All assets, income, and expenditures need to be accounted for prior to the conclusion of the probate.
Creditor Claims to Assets
When a person or institution loans money without requiring collateral, they are considered an ‘unsecured creditor’. In this instance, unsecured creditors of the estate must submit a formal creditors’ claim within a statutory period to be considered a beneficiary by the courts. Any creditor that fails to properly submit a timely claim is forever barred from further legal action against the estate.
Concluding the Probate
Once the filing is complete, assets are sold or transferred, all documents and receipts are submitted to the courts with a request to close the probate. Once closed, the process is over and the personal representative or trustee is released.
Learning the probate process highlights the importance of having a Last Will and Testament and Estate Plan in place. Hiring a qualified lawyer to handle these documents is a smart proactive move that gives you the authority to pass along valued treasures, property, and assets to whom you designate. It clears outstanding debt and protects your loved ones during a time of loss.
Contact us for a free consultation to learn more about preparing for your future and protecting the future of those you love.
Kelly C. Sturmthal, Esq.