Often times people are very unfamiliar with the process of probate until a loved one passes away and they are somehow involved in the probate of a will or the administration of an estate. Probate is the court-supervised process for identifying and gathering assets of a deceased person and distributing them amongst creditors and beneficiaries.
When beneficiaries learn about probate, they can be frustrated when they find out that they might not see their inheritance for many months or even a year or longer. While this news can be discouraging, once one understands the probate process, the delay is easier to accept.
When someone passes away, the Last Will and Testament of the deceased must be deposited with the Clerk of the Circuit Court having jurisdiction over the estate within 10 days after learning of the decedent's death. Once the will is brought to the court, the court will first determine if the will is in fact valid. From there, probate proceedings will begin. Initially the decedent's assets are used to pay the costs of the probate proceeding, then they are used to pay the decedent's debts, and any remainder is distributed to the decedent's beneficiaries.
There are two types of administration in Florida: formal administration and summary administration, with summary administration being the simplified version of the two. Whether or not an estate will be required to go through probate will depend on how the decedent owned his or her assets at the time of their death.
Probate is necessary when a court order is required to transfer ownership from the decedent's property to the beneficiaries. However, probate is not necessary when all assets are owned and one of the joint holders is still alive. In simple terms, probate only applies to those assets that the decedent owned in his or her sole name at the time of death, or assets that the decedent co-owned but lacked the provision for automatic succession at the time of ownership death.
One of the greatest benefits of probate is that the personal representative administrating the estate (the person named in the will) will have to answer to the court and all of their actions will be closely monitored. Beneficiaries can take comfort in the fact that the personal representative must follow specific protocol and cannot do what they please with the estate's assets. Some of the benefits of probate include the following:
- Probate is a court-supervised process
- The personal representative must follow the court's orders
- The personal representative must provide notice of hearings and proceedings to those who have an interest in the estate
- The personal representative must supply periodic accountings and a final accounting detailing disbursements and receipts
- Probate ensures that the decedent's creditors are paid
- Probate ensures that certain procedures are followed correctly
- A circuit court judge presides over probate proceedings
If any questions arise during probate proceedings or if the beneficiaries have any concerns or disagreements with how the estate is being administrated, then the judge will hold a hearing as necessary to resolve the issue at hand. The judge will make a decision and set forth an "order." If the judge finds that the personal representative is acting in bad faith, then the judge has the authority to order his or her removal from their position.
To learn more about probate, please contact Miami probate attorney Susan E. Durre at (305) 600-5677.