Probate

What Is Probate?

Probate is the court-supervised legal process used to administer a person’s estate after death. The process generally involves identifying and gathering probate assets, addressing valid debts and expenses, appointing a Personal Representative when appropriate, and ultimately distributing the remaining assets to the beneficiaries.

If the decedent left a valid Last Will and Testament, the probate estate is generally administered and distributed according to the terms of the Will. If there is no valid Will, assets subject to probate are distributed according to Florida’s intestacy laws.

Why Can Probate Be Challenging?

Probate is not necessarily something to fear, but it can involve additional time, expense, court supervision, and administrative requirements for the family.

Probate Can Be Expensive

Probate may involve attorney’s fees, Personal Representative compensation, court costs, accounting expenses, and other administrative expenses, depending on the nature and complexity of the estate. Florida law also provides for compensation to Personal Representatives for their services.

If a Florida resident owns real property in another state, an additional proceeding may also be necessary in the state where that property is located.

Probate Takes Time

The length of a probate administration depends upon the estate. Creditor claims, real estate, tax matters, disputes among beneficiaries, litigation, and other complications can extend the administration considerably.

Until the estate has been properly administered, some assets may not be available for immediate distribution to beneficiaries.

Probate Is Court-Supervised

A Personal Representative has legal duties to properly administer and distribute the estate and is accountable to the beneficiaries and the court. While court approval is not required for every action taken during an administration, probate involves procedures, notices, deadlines, and filings that must be properly completed.

Probate Offers Less Privacy Than Private Estate Planning

Probate is a judicial proceeding, and many documents filed with the court become part of the court record. Certain information, including the probate inventory, receives confidentiality protections under Florida law, but probate generally provides less privacy than assets administered privately through a properly funded trust or other non-probate arrangement.

Can Probate Be Avoided?

In many circumstances, thoughtful estate planning can reduce the number of assets that must pass through probate. Strategies may include Revocable Living Trusts, beneficiary designations, appropriate forms of property ownership, and other non-probate transfers.

Avoiding probate, however, is not the only objective of a good estate plan. The right strategy depends upon your assets, family circumstances, long-term goals, and the level of control and protection you want to maintain.