Probate Administration Attorneys

If you are dealing with the estate of a loved one, you may be feeling overwhelmed. The probate process can be complex and time-consuming, but an experienced probate lawyer can help make things easier.

At Easler Law, we have a team of experienced probate lawyers who can guide you through the process. We will help you understand the requirements and deadlines, and we'll work to ensure that the process goes as smoothly as possible.

What is Probate Law?

Probate law is the legal process of administering the estate of a deceased person, including validating a will, if any, distributing estate assets to beneficiaries, and resolving any debts or issues related to the estate. The probate process can be complex, so it is important to have an experienced probate lawyer on your side.

If you are named as an executor in a will, or if you are the next of kin of someone who has died without a will, you may be responsible for handling the probate process. This can be a daunting task, especially if you are grieving the loss of a loved one.

Navigating the complex probate process can be difficult and time-consuming, from filing the necessary paperwork with the court to distributing assets to beneficiaries. If there are any disputes among beneficiaries or creditors, a probate lawyer can also help resolve those issues.

Why Probate an Estate?

Failing to probate an estate when there are assets in the name of an individual who has died can have several consequences. First, if there is a mortgage on real property or liens on other assets with outstanding debt, the estate will likely default on the debt and lose the assets.

Consider this example: Alfred owns property in his name worth $100,000 and has a mortgage for $50,000. After Alfred passes, no one makes his mortgage payments, and no one probates his estate. The bank will initiate foreclosure, auction the property, and take its half. If Alfred were alive, he would be at least entitled to the surplus ($50,000 less the foreclosure costs); however, since he passed, Alfred's estate is entitled to the surplus. If no one initiates probate, no one can claim the surplus on behalf of the estate, and the funds will go unclaimed.

Another concern is that someone other than a beneficiary, such as a major creditor, initiates probate instead. Creditors with an interest in the estate also have a right to petition the estate for probate.

If assets in the name of the decedent (the person who died) have been taken from the estate without the blessing of the probate court, the creditor may be able to hold the taker liable for the value of those assets. While initiating probate as a beneficiary won’t eliminate claims of creditors, it will help the beneficiaries assess and determine their rightful share of the estate after claims of creditors on non-exempt property (and avoid accusations of theft).

Another good reason to initiate probate is the risk that another beneficiary petitions first. For example, Alfred passes, leaving two adult children, Cain and Abel. Alfred has specifically written Cain out of his will for his relentless attacks on his brother Abel. After Alfred passes, Abel holds Alfred's will but fails to start probate. Not knowing of the will, Cain initiates probate, believing he is entitled to 50% of Alfred's estate. Now Abel and Cain have an apparently adversarial conflict in the probate that Cain initiated, costing unnecessary time and money to sort out.

If you are named as an executor, or “personal representative” as it is called in Florida, in a will, or if you are the next of kin of someone who has died without a will, you may be responsible for handling probate. An experienced probate lawyer can help you navigate the probate process and ensure that the estate is administered properly.

What Happens During The Probate Process?

Probate is the administration of the estate of a person who has died. This process is completed through a special division of the courts, called the Probate Division. The administration process typically includes:

• Identifying and locating testamentary instruments, such as a will or trust.

• Gathering and inventorying the deceased person’s assets, including property, bank accounts, investments, and other financial accounts.

• Determining whether any debts or taxes are owed by the estate, and paying them accordingly.

• Distributing assets to beneficiaries in accordance with the terms of the will or state probate laws, if there is no will.

• Resolving disputes among beneficiaries or creditors as necessary.

Common Ways to Avoid Probate

Depending on the size and complexity of your estate, there are a few methods of avoiding probate.

To know how to avoid probate, you must first understand why probate is necessary in the first place. If you died today, what assets would still be in your name? Your car, your house, your bank account, or your retirement account? How does the bank, for example, know where those funds should go upon your passing? If you haven’t designated a beneficiary in advance, the bank needs some sort of legal confirmation to release those funds to whoever claims them. This is where probate comes in. Through probate, assets titled in the name of someone who has passed can legally change title, be sold, or otherwise distributed under the direction of the court. One goal of estate planners is to try and get as much as possible out of your name before you pass or upon the moment you pass and thus avoid the need for the court to direct that assets be taken out of your name in the first place.

The formation of a trust is one of the most common and effective avenues available to avoid probate. With a trust, you can designate a trustee to manage your assets and distribute them to your beneficiaries upon your death. Trusts can be revocable or irrevocable, and they can be used for asset protection as well. Trust formation is part of estate planning, but if not validly executed and then operated effectively and with the avoidance of probate in mind, a trust will fail to avoid probate. However, even the best trust can be challenged in probate court, so absolute probate avoidance is impossible.

Other Strategies to Avoid Probate

• Avoid probate by gifting assets during your lifetime. This can be done through a gift, deed, or other legal documents. However, it is important to consult with an experienced estate planning attorney before making any gifts, as there may be tax implications.

• Owning property together with rights of survivorship with one or more individuals can also help avoid probate. For example, in Florida, you may own your home jointly with your spouse as tenants by the entirety, which means that if the deed is prepared correctly, your home will automatically pass to your spouse upon your death.

• Designating beneficiaries on your bank, retirement, and investment accounts can help, too. However, should the beneficiary or beneficiaries you name predecease you, the transfer will lapse or fail, meaning the property will end up in probate anyway.

Types of Probate Administration

Formal Administration

Formal Administration is the standard method of administering an estate through the probate courts. As long as the court has the necessary jurisdiction, most probate cases can be commenced with this type of administration. Formal Administration follows the usual procedures under the Florida Statutes and Florida Probate Code. This type of administration typically takes longer than other types of probate administration, but may still be an appropriate choice in some instances even if the estate qualifies for Summary Administration. An attorney can help decide which type of administration is appropriate in your particular situation.

Summary Administration

Summary Administration is a type of "express" version of probate designed to quickly resolve estates of decedents (those who have passed) that qualify. To be eligible for this type of administration, the estate must meet certain minimum requirements including, but not limited to:

• The decedent's will does not require formal administration under Chapter 733 of the Florida Statutes, AND

• The apparent value of the entire Florida estate, less the value of property exempt from claims of creditors, does not exceed $75,000, OR

• The decedent has been dead for more than 2 years.

This type of proceeding streamlines the probate process and is designed to greatly reduce the time it takes to probate the estate. In fact, some estates filed as formal administration switch to summary administration when it is discovered that the estate qualifies.

Disposition of Personal Property Without Administration

Sometimes referred to as a "Small Estate Proceeding", the Disposition of Personal Property Without Administration is the most express method of probating an estate, but has strict requirements. In this type of probate, if the person who passes leaves only:

• Personal property which is exempt under the provisions of s. 732.402,

• Personal property exempt from the claims of creditors under the Constitution of Florida, and

• Nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

If a person passes with real property or personal property that is not exempt that exceeds the cost of funeral and medical and hospital expenses for the last 60 days of the last illness, the estate will not qualify for this procedure and will require probate.

Ancillary Administration

Ancillary Administration is the process of extending the probate of a nonresident that has unresolved issues in the state that must be probated. These issues include:

• Leaving assets, such as real estate, in the state,

• Having credits due from residents in the state, or

• Having active liens on property in the state.

There are important factors to consider before filing for Ancillary Administration, including the value of assets in the state, the qualification of the personal representatives, and the status of foreign probates for the same decedent elsewhere. An experienced probate attorney can assist with selecting the right type of ancillary administration to avoid unnecessary delays in administration.

State Laws That Govern the Probate Process

Every state has its own probate laws, which dictate how probate must be conducted.

These laws require that specific steps be taken for probate to be valid. In Florida, there are many sources of probate law and procedures, including the Florida Statutes, Florida Probate Code, case law, and even local rules at the court level.

Penalties to the Personal Representative

In Florida, the holder of a will is required to deposit it with the court within 10-days of the death of the decedent. While breaking this rule is not criminal, it is not without possible consequences. Delays in depositing the will can result in someone else erroneously believing there was no will and initiating probate as if there was no will and incurring expenses they may later claim against the procrastinating holder of the will.

Claims and Insolvent Estates

In some cases, the estate may be insolvent, which means there are more debts than assets. By opening probate, a creditor must file a claim within a required timeframe, or the personal representative may reject the claim. If no probate is initiated, creditors’ claims will only be barred after two years following the individual’s death.

When to Hire a Probate Attorney

If you are handling a loved one's estate probate, you may wonder if you need to hire a probate attorney.

The answer to this question depends on a few factors; in some cases, probate may not be required. For example, if the deceased had a small estate or if all of the assets are held jointly with a surviving spouse, probate may not be necessary.

In other cases, probate may be required, but it can be handled without an attorney. For example, if the deceased left a will that names an executor, the executor can typically handle probate independently. However, if the estate is complex or there are potential disputes among beneficiaries, it may be wise to hire an attorney to help with probate.

If you are unsure whether probate is required, an attorney can also help you determine whether probate is necessary and advise you on how to proceed.

When deciding whether to hire a probate attorney, you should consider the following factors:

• The size and complexity of the estate

• The likelihood of disputes among beneficiaries

• Your comfort level with handling probate
  

If you decide to hire a probate attorney, be sure to choose one who is experienced and knowledgeable about probate law in your state. An experienced attorney can help you navigate the probate process and protect your interests.