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Probate is Mandatory, Even With a Will

Many people are surprised to find out that a probate proceeding may be necessary whether or not the decedent had a will. A will doesn’t eliminate the requirement for probate; rather, a will is the main mechanism used in the probate process. Probate is a supervised process for recognizing and collecting the assets of a deceased person, resolving their debts, and splitting up the remainder if the assets among the beneficiaries.

A judge from a circuit court oversees probate matters. The judge appoints the representative and gives them “letters of administration.” This document represents to the world that the personal representative is empowered to act on behalf of the deceased’s estate. The judge also may hold hearings when called for, and answer any and all questions voiced during the administration of the estate by entering directions called “orders.” Probate is a required process which ensures that the affairs of the deceased are taken care of. This process ensures that every one of the deceased’s creditor’s is paid. This includes tax debts from the IRS. The probate process usually costs from 3% to 7% of the total estate value. The transfer of assets from the decedent to a proper beneficiary is the main function of probate.

If the person died without a will it is referred to intestate. If they died intestate, the execution of the estate will be handled in accordance with state statutes. Probate court ensures that the law is followed. If a person died with a will in place, their estate is referred to as a testate estate. The court will make sure that it was properly executed, and the assets are distributed according to the will. However, it is crucial to remember that a will can be contested. This can delay the distribution of the will for years and incur high costs for the deceased’s estate.

Many times, when the estate is very large, family members or other heirs may have clashing interests. The interested parties with contrasting claims commonly hire an attorney. The plaintiff is the person who made the complaint, and the defendant is the personal representative in the lawsuit. Lack of mental capacity is often used as an objection. Another common objection is that the deceased was forced to create the will. Others objections include undue influence; the will is not the original, authentic will;  or the will was not properly designed, signed or witnessed according to the formal requirements of the state. Once litigation starts, the will is made available to the public, and anyone can access it. In addition to the embarrassment and cost, if the plaintiff wins the claim against the estate, the deceased’s wishes may not be carried out.

Although the probate process can be costly, it does not need to be complicated. The most effective way to reduce or avoid time in probate court is to pre-plan the estate. However, planning in advance does not mean going to the local OfficeMax and picking up a “fill-in the-blank” will or downloading it from a website.

Keep in mind that you must obey state laws. There are very clear statues that regulate the execution of a will. These include who can or should be a witness, and where and when you and your witnesses may sign. The specific wording used in the will may be legally correct; however, the will can still be questioned if it is not correctly executed. Also, certain family members may have declared rights according to state statues. To minimize the possibility of your will being contested, hire an Estate Planning attorney. A well-versed lawyer can draft a will for you that will meet your needs and the statutes of your state.

In South Florida, contact the Estate Planning and Probate attorneys at Wild Felice and Partners at (954) 944-2855