Question 1

What types of property need to go through probate?

Accepted Answer

As the probate process can be lengthy, stretching over a number of months, probate assets are often tied up until the end of the administration process. This can often create liquidity challenges for the personal representative and potential beneficiaries, so itís important to understand from the outset which assets will be included in the probate process. There are two general categories for classifying assets: ìProbate Assetsî and ìNon-Probate Assetsî. Non-probate assets are assets that are able to bypass the probate process entirely. These assets are generally already designated to be controlled by a specific party, either by being jointly owned, or having a designated beneficiary. Such examples would be: 1.) Retirement accounts where a beneficiary is named 2.) Property held in joint tenancy 3.) Property that is owned as tenants with a spouse 4.) Property titled in the name of a trust, with a designated successor trustee Probate assets are titled in the sole name of decedent. Some examples of these assets are items such as: 1.) Bank and brokerage accounts with no designated beneficiaries 2.) Vehicles and boats titled in the decedentís name 3.) Personal property items, such as jewelry 4.) Assets owned by a single member LLC, or corporation.

Question 2

When is probate required to transfer title to real estate?

Accepted Answer

Probate is required whenever there are assets in the sole name of the decedent. If the decedent owned a piece of real estate in his sole name, or as tenants in common with a co-owner, then probate will be required in order to remove the decedentís name from the real estate. Probate will be required regardless of whether the decedent left a Last Will and Testament. Probate is the court supervised process for retitling assets and determining the correct beneficiaries to receive the assets. Often beneficiaries decide to sell the real estate during the probate process. It is always prudent to order a title commitment associated with the real property many months before the proposed closing in order to confirm what documentation may be required from the probate court to clear title. If there is a Last Will and Testament which authorizes the personal representative to sell real property, then an additional order from the probate court authorizing the sale should not be required. If the decedent did not have a Last Will and Testament, an order from the probate court will typically be required in order to clear title. The petition authorizing the sale will include the fair market value of the real estate, the contract for sale, and will be served on all interested parties to the transaction. If there are no outstanding objections to the sale, the judge will issue an order authorizing the sale, and a certified copy of the order will be recorded on the official records during the closing process. Obtaining such orders from the probate court takes time, so it is important understand what orders will be required before setting closing dates on the sales contract. If orders cannot not be obtained prior to the closing date, the buyer and seller must enter into an extension associated with the sales contract. If the real estate was the homestead of the decedent, there can be additional complications to the closing process. Floridaís state constitution provides special provisions for how a decedentís homestead is to be treated for purposes of decent and devise. In order to sell a decedentís homestead property, often quit claim deeds from the intestate heirs to the new owner will be required to complete the closing process. Alternatively, you can obtain an order of homestead determination from the probate court. One problem is that the order of homestead will not be issued until the expiration of the 90 day creditor period, which can significantly prolong the closing process. Itís best to consult an experienced probate attorney from the Florida Probate Law Firm in order to confirm the fastest and most efficient way to sell real estate during the probate process.

Question 3

What types of property do not need to go through probate?

Accepted Answer

One of the first steps to settling an estate is determining what assets are left behind by the decedent, and categorizing those assets depending on how they are to pass to beneficiaries. Assets are allocated into the following general categories: 1.) Probate Assets 2.) Non-Probate Assets a. Jointly Held Properly b. Beneficiary Designations c. Trust Assets. Probate is the legal process of retitling assets in order to remove the decedentís name and to distribute those assets to the correct beneficiaries, often identified in a Last Will and Testament. Non-Probate assets escape the probate process and are not subject to the provisions of a Last Will and Testament. All non-probate assets have the common characteristic of having a named beneficiary or named fiduciary directly associated with the assets which takes precedent over how those assets will be distributed upon the death of the initial owner. If you are having trouble determining whether or not your assets will require probate upon your death, it is important to speak with an experienced probate attorney. An experienced and well-versed probate attorney can ensure no loopholes or gray areas exist within your estate plan and will ensure your beneficiaries can skip over the lengthy process involving the probate court. Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

Question 4

When can I close the estate and distribute the assets?

Accepted Answer

To start, letís understand what the probate process entails. Probate, or probate administration, is the process of retitling assets held in the sole name of the decedent, into the names of the appropriate beneficiaries, or alternatively the process of having the probate assets sold and the proceeds distributed among the appropriate beneficiaries. Probate occurs whenever there are assets held in the sole name of the decedent and those assets have no joint owners or designated beneficiaries. One common misconception is that probate will be required whether the decedent left a Will, or died without a Will. The probate process can unfortunately be time consuming and expensive. In Florida, all formal probate administrations must include a 90-day creditor period in which potential creditors can file claims against the estate. Due to this requirement formal probates at a minimum will remain open for approximately 4 months, but on average most probates will stay open anywhere from 7-9 months. Probate assets should never be distributed before the creditor period has expired and all creditor claims have been dealt with appropriately. All litigation against the estate should also be settled prior to any distributions. The procedure for closing the estate involves the creation of an inventory and a final accounting, which documents all administrative expenses accumulated via the probate process. The final accounting must be served on all beneficiaries via formal notice and each interested party will have 30 days to contest the accounting. If the beneficiaries are interested in expediting receipt of their share, they can each sign a waiver of the final accounting, consenting to the discharge of the personal representative.

Question 5

When can I close the estate and distribute the assets?

Accepted Answer

To start, letís understand what the probate process entails. Probate, or probate administration, is the process of retitling assets held in the sole name of the decedent, into the names of the appropriate beneficiaries, or alternatively the process of having the probate assets sold and the proceeds distributed among the appropriate beneficiaries. Probate occurs whenever there are assets held in the sole name of the decedent and those assets have no joint owners or designated beneficiaries. One common misconception is that probate will be required whether the decedent left a Will, or died without a Will. The probate process can unfortunately be time consuming and expensive. In Florida, all formal probate administrations must include a 90-day creditor period in which potential creditors can file claims against the estate. Due to this requirement formal probates at a minimum will remain open for approximately 4 months, but on average most probates will stay open anywhere from 7-9 months. Probate assets should never be distributed before the creditor period has expired and all creditor claims have been dealt with appropriately. All litigation against the estate should also be settled prior to any distributions. The procedure for closing the estate involves the creation of an inventory and a final accounting, which documents all administrative expenses accumulated via the probate process. The final accounting must be served on all beneficiaries via formal notice and each interested party will have 30 days to contest the accounting. If the beneficiaries are interested in expediting receipt of their share, they can each sign a waiver of the final accounting, consenting to the discharge of the personal representative.

Question 6

Which law applies if the decedent owned land in more than one state?

Accepted Answer

The simple answer is that there will need to be a separate probate proceeding in each state in which the decedent owned real property, aka real estate. If the real estate was owned in the sole name of the decedent, only the appropriate court in each state can authorize the distribution or sale of real property owned by a decedent in that particular state. Upon the death of the decedent, the proper procedure is to first initiate the domiciliary probate in the state in which the decedent was domiciled at the time of death. Often the last known address listed on the death certificate is utilized to determine which state is the appropriate venue for the domiciliary proceedings. A petition for probate will be filed in the county of last residence. The domiciliary probate will control all real property located in that state, as well as all tangible and non-tangible personal property located anywhere in the United States. The vast majority of estate property is generally controlled by the domiciliary probate, including most liquid assets such as bank and brokerage accounts. Any real property, aka real estate, owned in a state other than the domiciliary state, will require a second probate initiated in that other state, referred to as an ìancillary probate proceeding.î The ancillary proceedings should always start after the domiciliary probate is underway, since exemplified or certified copies of the domiciliary proceedings will be filed in the ancillary states. In order to obtain clear title to potentially sell the real estate while in the name of the estate, or at some future time, a title company will require that the necessary probate proceedings be conducted to document proper chain of title. It is not uncommon for families to avoid the probate process for many years after the death of a family member, choosing to instead live in the home without removing the decedentís name from the house. The family is then forced to conduct a probate many years down the road when it comes time to sell the piece of real estate. Waiting extended periods of time to initiate the probate process can create significant problems, chief among them is the possibility that beneficiaries will also pass away, which can create a situation in which multiple probates must be conducted simultaneously in order to clear title.

Question 7

Does all property have to go through probate when a person dies?

Accepted Answer

The probate process can be confusing and tedious, especially just after the death of a loved one. Probate is the legal process in which a judge oversees the administration of an estate to ensure the decedentís property is distributed to the correct beneficiaries. The first step in administering an estate and deciding if a probate is necessary, is to identify the assets owned by the decedent. The simplest method of identifying assets is to search the decedentís mail and/or residence for financial statements or other records. Once the assets are identified, the second step is to determine how those assets are titled, and if any of the assets have designated beneficiaries. Only assets which are titled solely in the name of the decedent will have to go through the probate process, assuming the asset does not have a designated beneficiary, such as a POD feature. Designated beneficiaries can only be utilized for certain assets and are most common for retirement accounts, brokerage accounts and life insurance policies. There are two general categories of assets: 1.) Probate Assets 2.) Non-Probate Assets Probate assets are any assets that were owned completely and solely by the decedent at the time of death. The following are potential types of assets that may require probate: ñ Real property which has been titled only in the decedentís name, or held as tenants in common; ñ Bank or brokerage accounts that are titled in the decedentís sole name; ñ Personal property, such as furniture, vehicles, jewelry; ñ Life insurance policies that that donít have a named beneficiary, or have the name of the decedentís estate as the designated beneficiary; ñ A portion or interest of any partnership, LLC, or corporation in which the operating agreement does not address what happens with the assets upon the death of a member. Non-Probate assets that are allowed to bypass the probate process are those that are owned jointly with other people, or that have designated beneficiaries directly on the account. Examples of non-pronate assets may include the following types of assets: ñ Retirement accounts; ñ Property or assets held in a trust; ñ Brokerage accounts or bank accounts held in joint tenancy, or with a POD or TOD beneficiary; ñ Life insurance policies; ñ Any property that is held via tenancy by the entireties, or held in a joint tenancy.

Question 8

Does the property automatically transfer to my name or do I have to register the property with the state?

Accepted Answer

Regardless of what is provided in a decedentís estate plan, the transfer of property will generally depend on the details of the titles (ownership) for various properties. If a property is titled jointly, the property can generally transfer to the surviving owner automatically and with ease. If the property is not titled jointly, the property will only be transferred as designated by a decedentís estate plan following the proper legal procedure. Having jointly owned property can provide a simplified means of transferring ownship upon death. If you do not wish to have property jointly titled, a second option would be to designate a pay-on-death beneficiary for select assets. Either option can expedite the transfer of property following the ownerís death, since a court proceeding will not be required to remove the decedentís name. If property is titled with one sole owner and that owner passes away without a pay-on-death beneficiary, the property would need to go through the probate process to transfer properly.

Question 9

The decedent owed me money. How do I file a claim against the estate?

Accepted Answer

Florida Statute Section 733.702 directs that to file a claim against an estate, a creditor shall file a written statement of the claim in the probate proceeding. When filing a claim, it is advisable to attach supporting documentation to substantiate the amounts owed by the decedent, or his/her estate, such as executed contracts or invoices.  If a decedent owed you money, it is important that you consult with a Florida attorney to make sure you follow the correct steps to get your claim paid. There is a limited amount of time to file claims against an estate, so itís pivotal you donít miss the deadline.  With any formal probate administration in Florida, the court requires a 90-day (3 month) creditor period to be initiated by publishing a ìNotice to Creditorsî in a local newspaper.  During that 90-day period, any known or unknown creditors of the decedent will be able to file claims, and often times itís a collections agency working for a creditor that ends up searching for these publications and files the necessary claims.  If the personal representative receives statements in the mail regarding unpaid bills or debts, then the attorney for the personal representative will mail those identified entities directly with the ìNotice to Creditorsî.  Any party that is mailed a Notice to Creditors, will need to file their claim within 30 days of receiving the notice, or within the 90-day creditor window, whichever expires later. Once you file your claim, the personal representative of the estate will either pay the claim, object to the claim, or attempt to settle the claim for some reduced amount.  Other interested persons, such as beneficiaries, may also file objections to your claim.  If the personal representative or another interested party files an objection to your claim, you have only 30 days to make your next move, although the court may extend that time for good cause.  In order to preserve your claim after an objection, you will need to file an independent civil suit against the estate, which is an independent lawsuit in the civil division rather than in the probate court.  Filing an independent civil suit includes paying a filing fee for initiating the lawsuit.

Question 10

Am I responsible for my deceased parent or spouseís bills?

Accepted Answer

When a family member passes away, whether foreseen or by accident, the collateral damage can be straining. It isnít unusually for potential creditors to attempt to coerce family members to pay off the bills or debts that were accrued by the decedent during life. With regard to the decedentís creditors, itís important to know that family members or beneficiaries are not responsible for paying off the decedentís debts. As long as the bills were in the sole name of the decedent, the correct procedure is for the creditors to file claims in the estate during the 90-day credit period. Depending upon the supporting documentation for the claim, the personal representative will be able to object to, negotiate or otherwise settle the claim on behalf of the estate. Only valid claims will be paid, and those claims are only entitled to be satisfied utilizing probate assets. Itís important that family members do not pay creditors from their own personal funds, unless there is a particular reason to do so. If there are no probate assets to enter the estate, the estate is considered insolvent and all creditors go unpaid. There are certain expenses that beneficiaries should consider keeping current throughout the probate proceedings, even prior to opening the estate. Examples of these types of expenses include: 1.) Insurance premiums for homeowner or car insurance 2.) Electricity and utilities associated with real estate owned by the decedent 3.) Past due mortgage, COA or HOA fees (only to prevent foreclosure). Check out our Creditor Claims page for more information. If you are unsure how to handle the debt of a loved one who has passed away, contact the experienced probate administration attorneys at Florida Probate Law Firm in Boca Raton.

Question 11

Can I Specify That Certain People, Like A Brother Or Sister, Should Never Receive Any Of My Property?

Accepted Answer

It is always recommended that you execute documents to establish an estate plan, often utilizing a Last Will and Testament. In the event you die without a Last Will and Testament, your probate assets will pass according to your stateís intestate statutes. Intestate statutes identify the default family members to receive your assets as beneficiaries of your estate. If at the time of death, you have a spouse and/or child, they will always be first in line to receive funds. Your parents and siblings only inherit in the event there is no spouse and no children. If you are working with an attorney to draft an estate plan, you should mention children and/or a spouse that you intend to disinherit. If you feel strongly enough that more distant relatives should not have any involvement in your estate, you can certainly mention them, but itís not typical, unless those distant relatives are in line to inherit as an intestate beneficiary. You can even execute a memorandum to maintain in your files explaining why you intentionally disinherited any particular person. These memorandums can be useful to demonstrate the decedentís intent if litigation is pursued against the estate by disgruntled relatives. Certain individuals with considerable assets and tumultuous family members, may consider being evaluated by a licensed psychologist on the day of executing their estate planning documents in order to counter any challenge to the estate based on lack of capacity.

Question 12

Do life insurance or retirement benefits need to go through probate?

Accepted Answer

Before assessing whether life insurance or retirement accounts need to go through probate, it is crucial to understand what the probate process is. The probate process is the legal process of retitling assets held in the sole name of the decedent at death, and distributing them to the correctly identified heirs or beneficiaries. The requirements of the probate process will largely be dependent on the relevant laws within the state of last domicile for the decedent. Non-probate assets are those that avoid or bypass the probate process. Whether life insurance policies or retirement assets must be included in the probate process, will be dependent on whether the decedent completed beneficiary designation forms for the assets, before death. Generally, life insurance policies and retirement accounts will have beneficiaries listed on the paperwork held with the financial institution. The identified beneficiaries can contact the company directly to request the necessary paperwork to effectuate the distribution of the funds. Often a death certificate will also need to be submitted on behalf of the beneficiaries. There are occasionally instances where these assets will have to go through probate to be transferred, such as when there is no beneficiary designation or when the decedentís estate is listed as the recipient.

Question 13

Can Someone Quit Claim His Property To Me Instead Of Leaving It In His Will?

Accepted Answer

A person can quit claim a piece of real estate, aka real property, to anyone they want during their lifetime, and this strategy would certainly avoid the need for probate associated with that particular asset. The dilemma with transferring real estate to someone during life is that you lose control of the property and often you cannot take back full possession if circumstances in your life change. For example, if you transfer your home into the name of your daughter, you run the risk that you might end up fighting with your daughter and she moves to evict you from the residence. This would be worst-case scenario, but it illustrates the risk of giving up control of your property during life. Other risks of transferring assets beyond your control include running out of money to pay for your living expenses, or potentially disqualifying yourself for Medicaid eligibility. Instead of quitclaiming your interest directly to someone else, an alternative strategy involves the use of a ìLady Bird Deedî, which provides the grantor with a life estate in the home and only upon the grantorís death does the property pass to a designated remainderman. The Lady Bird Deed allows the grantor to maintain complete control over their property, with the power to undo the deed if necessary, while still avoiding the probate process. An additional benefit of Lady Bird Deeds is that the grantor can also maintain their homestead status, as well as eligibility for Medicaid since the residence would be considered an exempt asset for the application process. You should seek the advice of an experienced attorney before deeding your real estate, aka real property, to anyone.

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