PROBATE F.A.Q.

2006-2010 by Jeffrey H. Minde, Esq.

 

WHAT IS PROBATE?

Probate is a judicial procedure by which the Estate of a deceased person is evaluated and accounted for. In a Testate Estate (one in which the decedent left a Last Will and Testament), Probate consists of determining where and how the assets of the Estate pass in accordance with the instructions left in the Will. A Will usually gives specific directions as to where and to whom assets will go. A Will also names an Executor or Personal Representative to oversee management of the Estate. The Executor generally hires an Attorney to help with the filing of legal documents and the management of Estate assets, both for the Attorney's technical expertise and because Executors are usually too involved with their own day-to-day lives to expend the necessary time and energy in Estate asset management.

In an Intestate Estate (one in which the decedent left no Will), a close relative usually petitions the Court to be named Executor. The Court may require the Executor-designate to submit to background and financial checks prior to being appointed, and may hold Hearings to see if the heirs of the Estate object to the appointment of the Executor-designate.

There are various forms of Probate. What form your Probate may take depends on the gross valuation of the Estate and the title and ownership of the various Estate assets.

 

MUST AN ESTATE BE PROBATED?

In most instances, yes. In traditionally structured families, the Estate of the spouse second to die usually represents the more complex of the two spousal Probates. This is because spouses generally inherit their Estates one from the other. However, with the rise of nontraditional family structures, such as those involving divorces, multiple marriages, stepchildren, extended nuclear family units, civil unions, and unmarried life partners, Probate may be a complex necessity even at the time of the first to die. You should check with your lawyer to see what type of Probate is needed under your specific circumstances.

The form of Probate needed is also very dependent upon how the various assets of the Estate were titled or held by the decedent. Such differences may determine whether an asset is a Probate asset or a Non-Probate asset. Again, you should consult a lawyer to see what type of Probate is required in your particular situation.

 

CAN PROBATE BE AVOIDED?

As a rule, not entirely. There are various types of Estate Planning tools that can simplify Probate. However, most States now require that even Family Trusts must go through some type of Probate proceeding.

 

WHAT ARE THE STEPS INVOLVED IN PROBATE?

First of all, the Will (if there is one) needs to be submitted to the Court to determine its validity.  A Petition to appoint an Executor must then be filed, followed by a preliminary accounting of the known assets and liabilities of the Estate. A careful review of all Estate assets, and their qualification as Probate or Non-Probate assets must then be done. After this qualifying procedure, Courts generally require that some sort of notice be given to potential creditors of the Estate. Outstanding debts should be settled. Following the settlement of any debts, the Executor may make distributions to the heirs of the Estate. Prior to closing the Probate, a final accounting of all assets, liabilities and distributions is filed with the Court. Only then may the Probate be closed.  Individual Courts may have their own additional requirements or procedures for instituting or closing Probate.

 

HOW LONG DOES PROBATE TAKE?

The answer to this question is highly dependent upon how organized the Estate is. A disorganized Estate with many scattered assets can literally take years to organize and account for. At the very least, a Probate of an organized Estate can take approximately six months.

 

HOW EXPENSIVE IS PROBATE?

This is a frequent question, and one which often causes worry. As with the amount of time Probate may take, the answer to this question is highly dependent upon how organized the Estate is. The longer the Attorney must spend searching for and qualifying assets, the more expensive Probate will become. Other factors, such as sales of real estate, liquidation of estate assets, and disputes amongst heirs also increase the cost of Probate. Creditors may sue the Estate. Relatives may appear, purporting to bear Wills and other documents created by the decedent which contradict the Will already presented to the Court. This may lead to a lengthy and expensive Will contest. All of this adds to the cost of Probate.

Fees may also be set by State legislatures, often as a percentage of the gross Estate, or linked to various factors of complexity. Generally speaking, Probates of smaller Estates cost less. They may have simplified proceedings as well.

 

WHAT IS ANCILLARY PROBATE?

An Ancillary Probate is a supplemental Probate proceeding held in a State where the decedent owned property but did not live. For example, a New York State resident may have been a "snowbird" with a condo in Delray Beach, Florida. Florida will require that an Ancillary Probate be had on the Delray Beach property in order to clear title and satisfy any Florida creditors.

   

WHAT HAPPENS IF WE JUST IGNORE PROBATE?

Ignoring the need for Probate is not a good idea. Failing to Probate an Estate may lead to complex problems years later when properties need to be sold or assets need to be converted. In the event, you may find yourself opening a Probate proceeding. The older and more 'stale' the circumstances, the more potential difficulties may arise, costing you far in excess of what a timely Probate would have cost.

 

WHAT ABOUT ESTATE TAXES?

Federal Estate Tax limits are at Two Million Dollars and rising. Thus, your Estate will pay no Federal tax on it's first $2,000,000.00 of gross value. Above that level, the tax liability is heavy; you can lower your Estate Tax liability by properly organizing your Estate. Also, traditionally, legal fees are taken "off the top," also lowering your Estate tax liability. Estate and "death" taxes imposed by individual States vary widely in their cost and applicability.  Once again, you need to consult a lawyer to see if there is an Estate tax liability in your particular situation.

 

WHAT IS THE BEST WAY TO DEAL WITH THE TIME AND COSTS INVOLVED WITH PROBATE?

The best way to minimize the impact of Probate is to do intelligent Estate Planning while you are alive. Working with an Attorney and spending a sensible amount of money today to establish a valid Will, Trust, or other Estate Plan documents, and properly titling assets, can save your Estate thousands or even hundreds of thousands of dollars when it is time to Probate.

 

WHO CAN I CONTACT FOR MORE INFORMATION?

If you are in need of assistance please feel free to call Jeffrey H. Minde Attorney and Counselor At Law P.A. at 561-447-4152. We can assist you with your Florida Probate or Florida Ancillary Probate, and will gladly refer you to a Probate Attorney in those States where we are not admitted to the Bar.

 

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