Understanding Probate – Why People Go to Great Lengths to Avoid It

Probate is the legal process of validating a deceased person’s will and distributing their assets to beneficiaries. It involves resolving any outstanding debts or taxes, locating heirs, and transferring ownership of property. The probate process varies depending on the state and the value of the assets involved. While probate can be an essential tool for ensuring fair distribution of assets, many people try to avoid it because of its lengthy, expensive, and sometimes complicated nature.

There are three levels of probate in Florida:

  • Formal Administration: Also known as formal probate, this is the most common type of probate in Florida. Formal probate is handled in the county Circuit Court where the decedent lived at the time of death. A Personal Representative will be appointed to oversee the distribution of the assets that are in the decedent’s name alone. If you are appointed as the Personal Representative, then it is recommended and sometimes required that a Florida probate attorney help you through the process and also address any discrepancies or disputes.
  • Summary Administration: This is an expedited form of probate administered when the total property and assets subject to probate are valued at $75,000 or less. Assets subject to probate are assets that are in an individual’s name that is deceased. The asset didn’t have a beneficiary named or another owner on the asset.
  • Disposition Without Administration: When the decedent’s assets are less than $6,000 and less than the value of the final expenses, then a “Disposition of Personal Property Without Administration” form may be filed. The personal representative (PR) is the person responsible for managing the estate during the probate process. The PR can be named in the deceased person’s will or appointed by the court if there is no will. The PR is responsible for locating assets, paying debts, filing tax returns, and distributing assets to beneficiaries according to the will or state law.

Creditors also play a significant role in the probate process. They have the right to make claims against the estate for any outstanding debts. The PR must notify all known creditors of the deceased person’s death and publish a notice in a local newspaper to alert any unknown creditors. Creditors have a specific time frame to make their claims and the PR can reject any claims that are not valid. If a claim is rejected, creditors can challenge the rejection in court.

The length of the probate process can vary widely, depending on the complexity of the estate and any disputes that arise. In some cases, probate can be completed in a few months, while in others, it can take several years. During this time, the assets of the deceased person are frozen, and beneficiaries may not have access to them until the probate process is complete.

Given the potential drawbacks of the probate process, many people take steps to avoid it. One way to avoid probate is by establishing a living trust. A living trust is a legal document that allows assets to be transferred to a trust during the person’s lifetime and then distributed to beneficiaries without going through probate after their death. This can help avoid the time, expense, and public scrutiny associated with the probate process.

Another way to avoid probate is by designating beneficiaries for certain assets, such as life insurance policies or retirement accounts. These assets pass directly to the designated beneficiaries, without going through probate.

Probate is a necessary process for ensuring the fair distribution of assets after a person’s death. The process can be lengthy, expensive, and complicated, which is why many people take steps to avoid it. Understanding the different levels of probate, the role of the personal representative and creditors, and the potential benefits of living trusts and beneficiary designations can help people make informed decisions about their estate planning. However, it is strongly recommended that you consult with an attorney familiar with Florida law to accomplish your estate planning goals.

The Law Office of Kelly L. Fayer, P.A. was established to serve members of our community. Whether you need assistance now or are planning for the future, it would be a privilege to help you. We strive to provide quality service while offering personal attention to each of our clients.