wills

How a Will Affects Probate in Florida

Wills and Probate

The Will plays a crucial role in the Probate process, acting as the main facilitator during Probate. Many people wrongly believe that having a will avoids probate. If the decedent died without having a Will, he or she died intestate, meaning that the Court will follow state statutory law to determine the disbursement of the Estate. Probate will be required whether or not the decedent has left a will since the laws of the State of Florida provide a “will” for those who chose not to make one through the intestacy statutes.

At that point, the fate of your estate is left to a set “Will” provided by the State of Florida based on intestacy statutes, which declare that a decedent without a Will shall have their assets distributed as previously determined by Florida statutes. Generally, intestacy statute process goes as follows: all of a decedent’s estate will go to their spouse (if married without children) or $60,000 will go to the spouse with the remainder of the estate split amongst the children (if married with children). The only way probate can be avoided is with a trust-based Estate plan in place.

If well planned, the Probate process does not have to be complicated or an unpleasant experience. The use of an Estate attorney can help drastically reduce the chances of a Will contest by constructing a Will that both, meets your needs, and abides by the laws of the state. For example, the concerns with the validity of a Will reach beyond the mere drafting of the Will. There are very specific requirements for the execution of the Will as well. So, while the actual language of a Will may be acceptable, a Court can still deem a Will invalid when contested if the proper procedural law was not followed.

Usually a Will contest occurs with large Estates when family members or heirs have conflicting interests. Each party in the Estate will then hire an attorney with the interested party bringing the claim as the plaintiff and the personal representative of the Estate as the defendant. The most common objections in a Will contest include the questioning of the decedent’s mental capacity at the time of the Will’s execution, if the decedent was under duress or undue influence, if the Will was forged, and if the Will meets the states formal procedural requirements such as was the Will properly drafted, signed, witnessed, etc.

Also, a potentially terrifying thought is that Probate litigation becomes public knowledge to anyone who wishes to attain details. Thus, Probate litigation is not only expensive, but also embarrassing for the family and all those involved with the Estate. Lastly and most importantly, if the plaintiff party succeeds in their suit, the decedent’s wishes are not fulfilled, which defeats the whole purpose of the Will.

For more information on successful Florida estate planning and probate techniques, please contact the South Florida law firm of Wild Felice & Partners, P.A. at 954-944-2855 or via email at info@wfplaw.com to schedule your free consultation. It’s a Wild world. Are you protected?

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

Probate: What You Need to Know

Fortunately, for the majority of people, death of a loved one is not a common occurrence.  However, when it does happen, it can result in a great deal of stress.  This is particularly true when the deceased has not planned the distribution of his assets.  Family members must go through probate to acquire these assets.

During probate proceedings, the court transfers ownership of the deceased individual’s assets to the beneficiaries of the estate.  This process begins with filing a petition.  This petition lists everything that the deceased person owned.  It also directs the distribution of the assets.

The petition might be more complicated for a larger estate, and there is a greater chance of conflicting interests from within the family.  As a result, it can take up to 18 months for the petition to be filed.  The probate proceedings might take around 6 months if the estate is smaller in size.  In either case, the costs will be approximately three to seven percent of the overall estate.

For individuals with wills, probate is still a required process.   Ultimately, if there are any asset is in the deceased person’s name, probate is necessary.   However, in some situations, the probate hearings may not be as complex.

In Florida, if the estate is less than $75,000, an informal hearing can be conducted with a probate administration.   Conversely, if the estate is worth more than $75,000, family members will probably have to go to court.

In any case, if you are required to attend a probate hearing, you must follow proper procedure.  You will need to be represented by an attorney unless you are the only one claiming the estate.  An attorney is required because there is the possibility that the estate could be contested for 3 years after the initial proceedings.   An attorney will guarantee that you have fair representation.

To avoid probate, family members should consider alternative options for estate planning.  A living trust is one of the easiest options because it immediately transfers ownership of the assets upon the decedent’s death.

While the beneficiaries will still need to visit an attorney, the overall process is less stressful.  It is faster, cheaper and generally more convenient than traditional probate. Also, a lawyer will sometimes take payment out of the estate.  So, while you will receive less from the probate, you will not have to pay anything upfront.

Regardless of how you approach settling an estate, it is prudent to consult with a trust and estate attorney.

In South Florida call the Estate Planning and Probate attorneys of Wild Felice and Partners at :
(954) 944-2855