Is Probate Always Necessary In Florida?
In Florida, probate is only necessary if there are probate assets. Probate assets are defined as assets that are held solely in a deceased person’s name, meaning that they are not held jointly, there is no beneficiary on the assets, and the assets are not held in trusts. When those things occur and you can’t obtain an asset for distribution to others or for personal ownership to do as you please; you instead must go to the probate court in order to get possession of that asset.
Probate would be necessary when there are individually owned assets and can include personal injury and wrongful death actions. You cannot proceed with those claims without a probate case being filed. Even if the person did not have financial accounts or real estate, probate will be necessary if there is a pending wrongful death action.
Can Probate Ever Be A Better Option Than a Living Trust?
In most cases, a living trust will be preferential to a probate proceeding, especially when family members get along. However, a probate can be a better alternative than a living trust when you need the public probate court forum and the legal system’s intent of fairness to all in order to prevent a miscarriage of justice. When you utilize legal proceedings and legal processes, the justice system tries to consider all concepts of fairness, which involves creditors and many family members related by blood.
The probate process is definitely more public than a living trust. In a living trust, for example, everything can be handled outside of court. If the trustee is a non-trustworthy person, that person can steal all of the trust money without the other beneficiaries knowing that they are entitled to the money, and criminal or civil lawsuits will be required to attempt to recover the funds. On the other hand, the probate process requires a formal process for notifying beneficiaries, notifying creditors and accounting for all the expenses relating to a probate proceeding. If there is any kind of mistrust between family members or if you want to create a very formal above-board process, then probate will be better than a living trust.
Who Are The Main Players In A Probate Case?
There are four main players in a probate case: the personal representative, the creditors, the beneficiaries, and the financial institutions. The personal representative is the ringleader of the entire process; they give notice to the creditors and the beneficiaries on their ability to receive an inheritance, and they work with the financial institutions in order to obtain the assets of the deceased person.
The next player is the financial institution holding a deceased person’s assets. The financial institutions will not readily give access to other people’s money to seemingly random people. In Florida, the financial institution will look for probate court orders or letters of administration held by the personal representative before allowing access to a deceased person’s account.
The third main player is the creditor of the deceased person. The personal representative is required to give legal notice to known creditors and to anyone else who may think that they are entitled to receive money from the deceased person. In a Florida probate, creditors are required to be paid before the beneficiaries are paid.
After the creditors have been paid, the beneficiaries will receive the remaining probate assets. The beneficiaries are required to get notice of the will and of the accounting of how the personal representative used the deceased person’s assets prior to distribution.
What Are Some Common Obstacles That People Face During The Probate Process?
There are three common obstacles that people face during the probate process: difficult family members, time constraints, and the skill set and money management ability of the personal representative. The biggest barrier in probate is how difficult family members can be; they can make the process miserable for everyone.
There are three levels of difficulty in a probate proceeding: easy, medium and horrible.
An easy probate proceeding occurs when family members get along and there is no need for a full accounting and noting of all of the processes. All of the family members work together to make the transfer of wealth go smoothly. They will work together when it comes to selling real estate and preparing it for sale and they’ll work together organizing financial information. Paralegals in a law firm can handle most of the heavy lifting, which reduces cost. When there are family members who don’t quite trust each other and want full accounting (to which they are entitled), then the process will take longer and cost more money due to the more heavy involvement of an attorney. The process can be even more difficult when there are family members who hate each other, are suing each other, and are putting legal claims on the probate estate. This creates a massive barrier to timely completion.
The second common barrier is time constraints. A lot of people who are named personal representatives do not realize how much time is involved in having to properly complete everything. These folks may have to work full-time and may have kids at home; settling an estate could be like a full-time job in some cases. Even if everything is done properly and everyone gets along, it can still take a long time in some people’s minds. For example, you have to publish a notice to creditors in probate court and cannot distribute any assets to the beneficiaries prior to the notice-to-creditor period ending.
The last barrier that people face during the probate process is the personal representative’s financial intuition and money constraints. Some people named as personal representatives in an estate simply do not have the financial intuition to manage accounts or the abstract sounding probate process in general. As a result, they may need more legal help than others, which will increase the amount of legal fees associated with completing the probate case. Sometimes the probate assets may not be enough to justify high levels of attorney involvement. For example, it doesn’t make sense to pay an attorney $6000 to collect a $5000 bank account. When a personal representative does not have the financial intuition to be able to handle these things cost-effectively for everyone, then it becomes a barrier to complete the probate tasks.
For more information on Necessity Of Probate In Florida, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.
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