This article intends to answer the top “15 Critical Probate Questions Answered.” By the end, you will be mentally ready to sit down with a Probate Attorney and have an informed discussion.
If you are dealing with Probate, then you are already under a lot of stress. My goal is to fully answer your questions and alleviate as much of your stress as possible.
Before we get into my 15 Critical Probate Questions Answered, allow me to define “What is Probate?”
According to Wikipedia, “Probate is the judicial process whereby a will is “proved” in a court of law and accepted as a valid public document. The will is the true last testament of the deceased. Else the estate is settled according to the laws of intestacy in the state of residence of the deceased at the time of death.”
So, what are the “15 Critical Probate Questions Answered?” (Plus a Bonus #16)
Table of Contents
What is the Probate Process if a person Dies with No Last Will & Testament?
Probate (passed through the courts) occurs when a person dies without a Last Will & Testament, the person’s assets. The probate process allows for distribution according to that state’s laws of intestacy.
Distribution of the deceased person’s assets is according to the state’s laws. The assets are not necessarily according to the deceased’s wishes.
The laws vary by state, but the cash and other assets typically pass to the spouse first.
Let us use California as an example.
In California, all the property acquired during the marriage passes entirely to the spouse. Any property acquired before the marriage or inherited is split between the spouse and any children.
If a person dies without a living spouse, the estate passes to the deceased children, if any, divided equally.
If there is no spouse and no children, or the deceased’s living parents, the estate passes to the parents.
Usually, the state will attempt to find any living relatives and pass the estate to them.
If there are no blood relatives, the estate passes entirely to the state.
A dependent probate administrator (Executor) is appointed to handle the probate duties if the deceased left no last will & testament.
The term “dependent” refers to the administrator’s need to get the court’s approval for the transactions that are a normal part of the probate process. An example is the sale of real estate or private property. A bond posting is required to protect the estate from any harm caused by the administrator.
Courts may also appoint appraisers. An appraiser will determine the value of the deceased’s property to prevent the stealing of estate assets or the cheating of heirs.
A yearly account filing is required for each year that the estate is left open. A final account filing is required when the estate is closed. The probate administrator must continue to ask for court approval on all significant transactions until the estate is closed.
What is the Probate Process if a person Dies having a Last Will & Testament?
If a person does have a Last Will & Testament, the probate court disposes of the assets per the last Will and the law.
The Will’s filing with the court includes an application for a “Letter of Testamentary.” This letter gives authority to the Executor.
The Letter of Testamentary’s notice is filed with the court for ten days. After ten days, the executor may hold a court hearing.
After the court hearing, the Executor receives the Letter of Testamentary granting authority to act on behalf of the deceased. This letter is supplied to banks and financial institutions, stockbrokers, title offices, etcetera. These institutions will follow the executor’s instructions to transfer assets.
A court notice is also published in the local newspaper for general circulation in the area where the deceased resided. The newspaper notice is a way to inform heirs and creditors of the death, so they will claim what they think the deceased owed them.
Within 90 days of the appointment of the Executor, filing of other legal documents occurs. These legal documents include papers that detail the inventory of assets (with appraisement value) and a list of claims (debts owed to the estate). The probate process is complete after this legal filing with the court and after all of the property has been transferred according to the Will.
Do I Need a minimum amount of assets to create a Last Will and Testament?
No. Every person can create a Last Will and Testament to dispose of their assets, whether they are worth $1 or $100 million.
Remember that the distribution of some assets can have tax implications. Thus, one must understand how inheritance will be taxed as one makes their estate planning decisions. Often it is wise to consult with an Estate Planning professional if you have a large or complicated estate.
Do I need a lawyer to go through Probate?
It depends on your state requirements.
In most cases, you will need a Florida Probate Lawyer. One exception is for “disposition without administration,” which is permitted for small estates. The second exception is for estates in which the Executor (personal representative) is the sole beneficiary. So, in many cases, Florida law requires the assistance of an attorney.
When an estate lawyer is not required, formal administration has many technical rules and pitfalls.It can be very frustrating for a non-lawyer. Florida’s system is too complex for most personal representatives to follow without guidance. The courts are not set up or staffed to provide probate legal assistance.
Also, judges in Florida require probate documents to meet certain specifications and wording. These forms for which are not available online or even in most libraries. Executors in Florida cannot rely on the court clerk’s office to guide them through the probate process.
Do I need an Executor, and how do I Choose One?
Legally, No, but you should name someone.
If you do not name an Executor and you do not have any living relatives, it is possible your Will might not even be discovered.
It is always best practice to appoint someone you know and trust as your Executor. However, keep in mind that a person can refuse to fulfill executorial duties even after passing away.
If there is no executor named in a will, a probate court will appoint a court officer as the estate administrator to handle the executorial duties. A probate court is a specialized court that deals with estate matters.
If you do not have any living relatives or none that you would want to execute your Will, you still have other options.
You can name certain professionals, such as lawyers, who have experience closing estates as your Executor. If you drafted your Will with a lawyer, you could also ask them. You can ask the banker or financial advisor who manages your finances.
Be aware that lawyers and bankers usually charge an executor fee for their services. The cost is typically 5–7% of your estate’s residue, depending on your state’s laws.
What legal duties does an Executor have?
An executor is legally the person responsible for sorting out the finances of the deceased. The Executor makes sure debts and taxes are paid and what remains is correctly distributed to the heirs.
The Executor has many responsibilities. The first responsibility of an estate executor is to obtain copies of the death certificate. The funeral home will usually be the provider of the death certificate. Multiple copies will be needed as each bank, and other institutions in control of asset paperwork will require a copy.
Executors appointed by the court must be paid. According to 2014 Florida Statutes, “reasonable compensation” for an executor involved in formal administration of an estate is as follows: 3 percent for the first $1 millions of an estate’s value; 2.5 percent from $1 million to $5 million; 2 percent from $5 mission to $10 million; 1.5 percent for anything above $10 million.
Should I have a Revocable Living Trust?
Most everyone needs a will. However, not everyone needs a Revocable Living Trust. You and your Florida Estate Planning Attorney will determine whether you require a revocable living trust. The decision will be based on your level of assets, age, and marital status.
If your main goal is to avoid probate court in Florida, you will not need a trust so long as you have assets that will not pass through Probate. However, if you have assets that will pass through Probate, then a Florida Revocable Living Trust can be an excellent idea.
What is the difference between a Living Will and a “Last Will and Testament”?
A “Last Will and Testament” will only take care of your stuff (your assets) “after” you are deceased.
A Living Will gives your family and doctors instructions about what medical treatment you do and do not wish to have, should you become incapacitated.
Having both, so you are addressing both sides of estate planning, is often the better decision.
Can I keep my Heirs from going through Probate?
In Florida, assets held in a Living Trust may pass to beneficiaries without probate court proceedings.
These Living Trusts must be created before your death. All assets, including real estate, antiques, vehicles, and so on, must be transferred into the Living Trust under the trust document’s terms.
If you are not a Florida resident but own real estate here, you may avoid probation in Florida by getting rid of all of your Florida real estates. Without holding any property located in Florida, you will not have an estate that will need to be probated in Florida. Not keeping any property in Florida may not be practical or desirable. Still, it may make sense for you to gift your Florida real estate to your children or other beneficiaries. Doing this will both reduce the value of your estate and avoid Florida probate.
Adding a joint owner to a bank account, investment account, or the deed for real estate will avoid probate in Florida. However, The joint account owner must be clear that the financial account or real estate is owned as joint tenants with survivorship rights and not as tenants in common. Suppose you are married in Florida. You and your spouse can own bank accounts, investment accounts, tangible personal property, and real estate with rights of survivorship in a particular form called “tenancy by the entirety.”
Payable on Death
In Florida, you are allowed to designate beneficiaries for your bank accounts (“payable on death” or “POD” account). Also, for your non-retirement investment accounts (“TOD” account). Additionally, in Florida, one can use a particular type of life estate deed called an enhanced life estate deed (aka “Ladybird Deed”). This allows one to retain ownership of Florida real estate during your lifetime then pass the property to your beneficiaries after you die without probate.
How long does Probate take, and How much does it cost?
The formal probate administration in Florida usually takes 6-9 months from start to finish. This process includes appointing a personal representative (i.e., the “executor”), a 90-day creditor’s period that must run, payment of creditor’s claims, and more.
The Summary Probate Administration is reserved for small estates worth less than $75,000 and has no debt. These can take less than a month under the right circumstances. In a summary administration, you need all of the beneficiaries to consent to the petition (in most cases). Once the Executor has everyone’s consent, and once the summary petition to the court is submitted. The summary administration order takes about 2-3 weeks in most Florida counties. The charge of summary administration will give the heirs access to the assets subject to the court order.
What is a Healthcare Directive, and Should I Have One?
An Advance Healthcare Directive is a document that allows you to state your choices about health care or to name someone (Health Care Surrogate) to make those choices for you if you should become unable to make decisions about your medical treatment.
An example of part of your Healthcare Directive could be a “Do Not Resuscitate Order (DNRO).” In Florida, under Fla. Stat. § 401.445, incapacitated individuals are presumed to have provided informed consent to procedures such as cardiopulmonary resuscitation, more commonly referred to as “CPR.”
Fla. Stat. § 401.45(3)(a) states that resuscitation may be withheld or withdrawn from a patient by an emergency medical technician or paramedic. This applies only if a DNR Order is presented to the emergency medical technician paramedic.
A valid DNR Order must be signed by the patient’s physician and by the patient. If the patient is incapacitated, the patient’s health care surrogate, proxy, or attorney-in-fact under a durable power of attorney.
According to Fla. Admin. Code R. 64J-2.018(3), if a patient is incapable of providing informed consent, the patient’s health care surrogate or proxy must sign the DNR Order to validate it.
Under Fla. Admin. Code R.64J-2.018(6), a DNR Order may be revoked at any time by the patient, the patient’s health care surrogate, proxy, court-appointed guardian, or a person serving according to a durable power of attorney.
What Documents Should I Have Prepared Before my Death?
Below is the list of recommended documents most adults residing in Florida should have in place.
- Last Will and Testament
- Pre-need Guardian Designation
- Advance Healthcare Directive
- Durable Power of Attorney
- Revocable Living Trust
- Letter of Instruction
- Beneficiary Designations
- List of Important Documents
- Provision of Digital Assets
Where Should all My documents be Kept?
In general, a bank safety deposit box is the safest. Bank safety deposit boxes are rarely robbed or burned.
Home safes may be fireproof, but even then, the safes can only withstand fire for a limited time. Safes can also be robbed, the contents lost or damaged in a storm.
Remember that the Executor of your Will is unable to access your safety deposit box unless they are co-named on the bank’s safety deposit box, so do NOT put your Will in there. A copy of your Will should be at your lawyer’s and ideally with your Executor. A copy can be kept in your bank safety deposit box.
The original Will should go to your lawyer or Executor, who can then put it in their safe deposit box if they wish.
Who should have copies of my Last Will and Testament?
The original of your Will should be with your lawyer or your Executor. Your Executor is the one who needs your Will, so it may make sense to give him or her the original copy, provided the Executor has a safe place to store it, such as a bank’s safety deposit box.
The original copy of the Will must be submitted to the probate court, which must approve it. A digital version or a photocopy is not sufficient. Once the probate court approves your Will, your Executor will follow your instructions and distribute your assets to your beneficiaries.
If the original copy of your Will is not found, your wishes cannot be followed. Instead, the court will distribute your assets according to state law, which may not align with your intentions.
Can Medicare Claims be Avoided in Probate?
Medicare is health insurance for senior citizens who have worked and paid into their Medicare during their careers. While you were employed, your paycheck was reduced a bit each time and put towards your Medicare.
Medicaid is health insurance for people who fall below certain income and asset levels. If a person applies and successfully secures Medicaid coverage, then receives health care services, Medicaid will often pick up the tab.
Medicaid will file a claim. But Florida Statutes require that a petitioner or personal representative of an estate put Medicaid directly on notice if the decedent was 55 or older.
If Medicaid files a claim against the estate, it will be a priority creditor. Medicaid claims must be satisfied before all lower-class claims such as credit cards.
Medicare, as a rule, does not cover long-term care settings. So, Medicare, in general, presents no challenge to your clear home title.
Most people in care settings pay for care themselves. After a while, some deplete their liquid assets and qualify for Medicaid assistance.
If you are likely to return home after a period of care, or your spouse or dependents live in the home, the state usually cannot take your personal residence to recover payments.
BONUS: Who are the Heirs in Blended Families?
There are two significant challenges with estate planning for blended families. The first is deciding how you want your property to be divided. The second is determining the best way to accomplish your objectives.
Your ability to transfer property depends on who owns it. If you own an asset independently, you can give that to any beneficiary of your choosing.
However, things change if you own property as joint tenants with a right of survivorship.
Furthermore, homestead laws in Florida control how “real property” can be left in a will.
When the real property in question is your principal residence, Florida homestead laws provide rules. If you are married or have minor children and those minor children are not those of your spouse, your spouse still has a right to a life estate in that home. This law allows your spouse at the time of your death to remain in the home as long as they desire. When the life estate ends, the house will be fully controlled by the remaining heirs. These heirs can be your children from the prior marriage or sold so that the proceeds can be distributed.
As an experienced Probation attorney, I can assist you before and during the challenging times, you can experience during the Probation process.
To read more about how I can help, Click Here, or select Probate under the Practices Areas in the navigation bar on my website.
I hope this article has helped illustrate some of my knowledge in the Probate space.
I further hope you find this article helpful in your decision-making and encourage you to reach out to me with any questions you might have. Please call me at my office or tap the Appointment icon at the top of the page to schedule an appointment.
With Best Regards,
Paul R. Ferreira, JD CPA CFE
Owner/Founder at The Lexwerx Law Firm, LLC
1550 W. Cleveland St., Suite 8
Tampa, Florida, 33606
** Information contained herein is not to be considered as legal advice. Please consult your attorney for legal advice on this or any legal matter.