The Probate Process in a Nutshell
Probate is the legal process through which a deceased person's assets are distributed to the heirs or beneficiaries, pursuant to the wishes of the deceased person as stated in his or her estate plan - or if there is none, according to Florida Law.
Now that sounds like a handful! Simply put, the Florida Bar describes probate as "a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries."
So how does the probate process even begin? The process is usually initiated by anyone who is seeking to have the decedent's assets distributed- say for example the decedent's sister- Lulu. For purposes of simplicity- let's say the Judge assigned to the case finds that Lulu qualifies to serve as the decedent's Personal Representative (PR) and appoints her to serve in this capacity.
Lulu, as PR, is required to conduct a thorough investigation of the decedent's assets and debts. Lulu will then will notify the decedent's creditors that the estate is being administered, and she will publish a notice to unknown creditors in the newspaper. The decedent's creditors then have 90 days to make their claim in the probate court against the decedent's estate.
During this time, family members and "interested persons" (people with a potential claim to the estate of the decedent) will have the opportunity to appear before the court and make claims, contest Lulu's actions in her capacity as PR, or request to be appointed in a fiduciary capacity.
And while the estate is being administered, assets may be frozen and unavailable to dependent beneficiaries.
After the 90 day creditor period expires, if there are no contests, family feuds, or lawsuits filed, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.
For Decedents with minor children, Probate is also where Guardians are appointed to raise the kids until they are 18 years old. If the decedent nominated a legal guardian while alive and that person qualifies to be the child's guardian, he or she will be appointed pursuant to the decedent's wishes. If however, the decedent did not nominate legal guardians, a guardian will be appointed based on the the best interests of the child, as defined by the Judge (using Florida laws as guidelines of course). (Note that different rules apply for children who still have one parent alive after the decedent's passing.)
Someone must also be appointed to manage any assets left for the kids until they turn 18. This means their inheritances could potentially be tied up in court for several years- and once they turn 18, the children will receive the remaining assets outright. (Kinda scary, huh?!)
After I explain this process to my clients I often hear: "This is such a hassle! Why is probate even necessary?" Probate is necessary to pass ownership of the decedent’s probate assets to his or her beneficiaries. If the decedent left a valid will, and the will is not probated, it'll essentially be ineffective to pass the assets down to the beneficiaries. If the decedent didn't have a will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.
* * *
Remember this article is called "The Probate Process in a Nutshell"! There are many contingencies and aspects of probate that are not discussed in this article such as what happens when families begin feuding or when there is a beneficiary with special needs left behind. But although probate can be a stressful process, there are several ways to ensure that your family will not need to deal with unnecessary challenges if you become incapacitated or pass away- starting with a properly executed and comprehensive estate plan.
To read more on the probate process, click here to read the Florida Bar's consumer pamphlet on the subject.
If you'd like to chat about the probate process or getting started on your estate plan, please call our office at (305) 860-8338 and mention this article. We are ready to educate you and walk you through these important issues.