The average person has little exposure to probate court until later in life. Understandably, many people do not understand what occurs during probate proceedings in Florida, and their misconceptions may lead to mistakes, oversights and frustration.
What people think they know about probate is often based on salacious stories in the news and hearsay from their friends and neighbors. Therefore, let’s address three most common misconceptions in order to better prepare you for what the future may hold.
Misconception #1: Having a Last Will and Testament means probate isn’t necessary
A surprising number of people believe that when someone dies with a Last Will and Testament (“Will”), there is no need for probate. This is simply not true as having a Will merely means the deceased person laid out how they want their estate distributed, but probate will still be required to make those distributions occur. Avoiding probate is only possible by using a Revocable Living Trust (most effective method), or beneficiary designations on assets (not a good idea for reasons not covered in this article).
Some commentators suggest probate may not be required if the estate is valued at under $75,000. This too is incorrect because probate is still required, it is merely the procedures that are different based on the size of the estate.
Misconception #2: The rights of beneficiaries come first
The second misconception that gives people unreasonable expectations is the idea their inheritance rights are the primary concern in a probate estate. This is untrue as Florida law requires the personal representative (the executor of the estate) to first resolve the Decedent’s outstanding financial obligations before beneficiaries receive their inheritance.
The Decedent’s tax obligations, personal debts and probate expenses all take precedence over the inheritance rights of the Decedent’s heirs or beneficiaries. The personal representative is a “fiduciary”, meaning they are obligated by law to address and settle the Decedent’s lingering financial responsibilities before distributing assets to beneficiaries. A personal representative who fails to do so risks being held financially responsible out of their own pocket for making improper distributions.
Misconception #3: You can handle probate without an attorney
The final misconception is that if the Decedent died with a Will, the person nominated as the personal representative can handle probate on their own without an attorney. While this is technically true for “Summary Probate Administration” (estates with less than $75,000 in total assets), the Judge the case is assigned to has discretion to demand the person seeking to open probate retain an attorney. This is because even summary probate is complex and may require multiple pleadings, along with valid service of such pleadings, in order to satisfy the exacting demands of the probate code.
If the estate has a value of more than $75,000 and “Formal Probate Administration” is required (meaning a personal representative will be appointed), both the person petitioning to open probate and the personal representative (usually the same person) must be represented by an attorney. This is mandated by state law because formal probate administration is complex, time consuming, and the entire process must meet the exacting demands set forth in both the Florida Probate Code and the Florida Probate Rules.
What to do?
Probate in Florida is not an easy process; it is time consuming, expensive, and beyond frustrating. If you are faced with a probate situation, you should contact us here at Marshall Law to discuss your specific probate issue so we can walk you through the process and ensure you fulfill all the requirements of the law. If you are worried about your family facing probate after your death, then contact us so we can discuss various options that will ensure your family can avoid probate altogether. We welcome the opportunity to meet with you and put your concerns to rest.