What Are The Factors That Set The Stage For Probate To Occur?
There are three factors that set the stage for probate to occur. The first factor is one that always occurs, and the remaining two occur only sometimes.
The primary factor that sets the stage for all probates to happen is the probate assets. Probate assets are assets that are titled solely in the name of the deceased person. This means that the account or the real estate did not have a joint owner, beneficiary or was not held in a trust. If someone is trying to sell a deceased parent’s property and the title company says they need to go to probate, that means the property was in that parent’s name and there was no joint owner. This also occurs when someone tries to obtain financial assets and the bank will not transfer the assets without “letters” or “letters of administration.” Those are the most common “prompting events” clients’ experience that will lead them to my office because probate is required to obtain “letters of administration” or transfer real estate held in one person’s name.
The other two factors that sometimes set the stage for probate to occur are poor estate planning and the need for probate ancillary to other litigation. If a deceased person has worked with and seen an estate planning attorney who has experience in Florida, then that estate planning attorney can explain to that person the ways to avoid a probate in order to avoid the cost and time associated with probate. If someone never seeks advice from a Florida licensed estate planning attorney, chooses to use documents found on the internet, or chooses to go through legal form companies, then probate typically will need to occur. This is because the person who is getting “do-it-yourself” legal documents is not correctly following the most logical path to avoid probate, or do not know the full picture of how the law treats the distribution of their assets at death. Yes, documents do help, but a knowledgeable and experienced estate planning attorney can properly tailor the legal documents to the specific situation while understanding and explaining how everything will turn out based on the wording of the legal documents (commonly, a last will and testament or revocable trust) and the names on accounts and real estate. In my practice, I’ve found that the large majority of probate cases occur when someone either fails to do estate planning altogether or else does a poor job of it without the assistance of an attorney because estate planning is too simplistically thought of as filling in names on forms. (Ambien)
The final reason that sets the stage for probate is the necessity for a probate proceeding that serves ancillary to litigation. If you have a family member who has died and you are asserting a wrongful death claim against someone for the family member’s death, then a personal injury attorney will usually contact a Florida probate attorney in order to start the probate proceedings. A probate proceeding is a condition precedent to filing a lawsuit for wrongful death, which is why I term litigation as being ancillary to setting the stage for probate. Litigation can also be ancillary to setting the stage for probate if there are claims of exploitation or theft of a deceased person’s assets prior to death. Under such circumstances, probate would need to be filed to seek recovery to the estate.
What Are The Common Misconceptions That People Have About Probate?
There are three common misconceptions that people have about probate.
The first misconception is the belief that if a person does not have a will, then the state of Florida will get all of that person’s assets. This is not true. If you do not have a will, then the state of Florida will have written a will for you and will only get your money as an entity of last resort. The state of Florida’s default will leave the assets to the surviving spouse, children, parents, grandparents, siblings, aunts, uncles, cousins and multiple lines of succession of all those relationships before they will leave money to the state of Florida. The state of Florida only receives money from a deceased person’s estate if no one comes forward to probate or claim money in a bank.
The second most common misconception is the belief that a will or power of attorney avoids probate. The durable power of attorney document stops working, or will not be accepted after the signor passes away. The truth is that a will is your ticket to probate court. If there is a will to be filed with the court prior to beginning a probate proceeding and when commencing a probate proceeding, a judge will take the reference to appoint the person named in the will to be a personal representative. So, many people think that by having a will they avoid probate, and this is simply not true.
The last common misconception about the probate process is that it takes years to complete. In most cases, it will not take years to complete. In the large majority of cases, it takes between five to seven months to complete the probate. However, the probate process can take years to complete if the family is contentious, if the personal representative has insufficient follow-through or organizational skills needed for prompt completion, or if the attorney doesn’t know how to complete the probate promptly, with proper family communication. When the beneficiaries get along, they can waive the long, cumbersome processes in a probate proceeding and it can be completed in less than one year or in the time frame stated above.
For more information on Factors Setting The Stage For Probate, 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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