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Probate

If you dropped dead while reading this you, like most of us, would leave a lot of loose ends.  Things you were planning to do today or in the near future wouldn’t get done, but there would likely be things related to them that would have to get turned off or addressed.  Bills would need to get paid, but your income and ability to pay them may stop at your death.  If you’ve been paid a government benefit for the month, such as Social Security, that’ll get prorated and reversed back out of your account immediately when the government agency is notified of your death.  What happens to your dog, cat, fish or birds? Who feeds them?  What happens to your business, if you have one, or other commitments you’ve made?  What about all your stuff….who gets it and when?  And don’t forget the tax people….the government is going to demand its piece of your stuff and it goes to the head of the line.  In fact, what about you?  When your family or friends walk into the room and find you slumped lifeless over the keyboard, what do they do with you???  Loose ends….

 

Probate is about tying up loose ends.  There are so many things to be addressed, and some more complicated than most folks imagine, that Florida law requires your Personal Representative (other States call that person the Executor or Administrator) to hire an attorney to guide them through the process.  Often the Personal Representative is a family member or dear friend of the deceased whose emotions are involved and may cloud their judgment in dealing with certain issues.  An experienced Probate Attorney will be the knowledgeable, steady thinker and voice to help make the right decisions in accordance with the law and your wishes.

 

Some folks say they want to avoid probate and ask me about ways to do that.  I don’t encourage that.  I’ll listen to their reasons and am seldom convinced it’s a wise approach.  Often they object to strangers knowing what they have since court probate files are public record.  I don’t get an answer when I ask them, “What do you care?  You’re dead.”  Nor do I get a Yes answer when I ask if they’ve ever gone to the courthouse and sat reading through probate files to see what people have.

 

I’ve often been asked about setting up a Revocable Living Trust as a way to avoid probate.  While it may reduce the amount of your estate that is subject to Probate, it rarely totally eliminates it.  The reason is that few people are diligent about transferring their assets to the Trust once it’s established; especially those acquired some time after it is initially set up.  Assets not titled to the Trust or otherwise disposed of by applicable law will be subject to probate.  If you owe someone money when you die that creditor can open a probate for you and be appointed your Personal Representative and make a claim against your estate.  If you don’t have enough assets not in the Trust to pay what’s owed, they can force the Trustee to pay those claims.  The whole probate process gets followed while that’s being sorted out and your Trust assets are disclosed and held up until the claims are settled.  So, what did that Trust do for you???

 

Others want to avoid the expense of Probate.  The greatest expense incurred in probate is the fee paid to the attorney that Florida law requires the Personal Representative to hire.  The Florida Probate Law has within it a presumed reasonable fee schedule for the attorney to avoid any potential abuse.  The attorney is not required to follow it.  The Personal Representative should ask the attorney they are considering hiring whether or not they adhere to the statutory recommended fee.  I do.  I include the statutory presumed reasonable fee schedule in my written contract with the Personal Representative.

 

Probate protects your assets and your wishes.  A big advantage to probate is what happens to your stuff and the extent to which your wishes are followed is overseen by an impartial, third party (the Judge) who has the authority to make sure things are done properly and your wishes followed.  If you thought you could avoid or reduce probate by having a Trust, you should keep in mind that a Court is not overseeing that Trustee to ensure they are doing things properly and following your wishes.  If a beneficiary thinks the Trustee is not acting properly or in accord with your wishes they can initiate a legal proceeding to have a court make a determination.  That’s going to tie up your assets and the administration of your estate in a contentious; perhaps lengthy lawsuit that likely would have been avoided had there been court supervision in a probate from the beginning.  And what about those creditors?  People have up to two years after you die to make a claim that you owe them money.  By opening a Probate steps can be taken to limit that claim period to a mere three months

 

An experienced Probate Attorney will guide your Personal Representative through the initial decisions that must be made in the immediate aftermath of your death.  They will then help them determine what assets you have and to whom you owe money and will assist them in addressing those claims.  Once the bills and creditors, including taxes, are paid they will ensure the proper steps are taken to distribute your remaining assets in accordance with your wishes as expressed in your Will.  If you don’t have a Will they will ensure distribution is done in accordance with the Florida Probate Law.  All of this is done under the supervision of that disinterested person, the Judge of the probate court.  Your assets and your wishes are protected.

 

I will gladly review your estate planning documents, discuss with you your wishes and offer suggestions that will help you prepare to better enable your loved ones and Personal Representative to tie up all the loose ends.  Let’s talk.

 

Tony Simpson is responsible for the content of this website.  THE INFORMATION PROVIDED IN THIS WEBSITE IS NOT INTENDED, NOR SHOULD IT BE INTERPRETED, TO CONSTITUTE LEGAL ADVICE ON ANY MATTER, BUT SOLELY TO PROVIDE INFORMATION.  EMAIL OR OTHER COMMUNICATION WITH THIS FIRM, IN ITSELF, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.