Things You May Not Have Known About Probate

For many, the probate process is a mystery; it doesn’t make news nearly as often as other areas of law do, TV and movies don’t often show probate proceedings, and thankfully, we don’t often go through the probate process multiple times in our lives.

That unfamiliarity can lead to a lot of unknowns, myths, and confusion. Here are some things that you might not have known about the probate process in Florida.

The Personal Representative Can’t Do What He Wants

The personal representative, while charged with responsibility, cannot just do what he or she wants with the assets of the estate. The representative must abide by probate rules, the will or trusts made by the deceased, orders of the probate court, and the priority, if any, of the estate’s creditors.

Yes, the personal representative may have no idea how to do this, because the representative isn’t often a probate lawyer — but that’s why you get a probate lawyer — to help with these things.

You Don’t Have to Always Pay Creditors

Just as in life, even after passing, the deceased or the estate, through the representative, can challenge creditor claims it believes to be incorrect or invalid or which are not due and owing. Challenging and negotiating these claims, can put more assets in the pockets of the estate’s beneficiaries.

You Don’t Always Need Probate

Not all probate cases are the same. With less than $10,000 in assets, you can avoid probate completely. With less than $75,000 in assets, you get an easier process, called summary administration. However, even under these amounts, if there are certain assets involved that require judicial direction, such as real estate or a business, probate may still be necessary.

And of course, in some cases, valuations or appraisals of property may be necessary to ascertain what the total value of the state actually is.

Obviously any challenges by heirs to the estate or will, will end up prolonging the process, no matter how many assets are involved.

Some Things Don’t Go Through Probate

Not everything someone owns will go through the probate process. As a general rule, anything that has already been transferred, or else, anything that has a pre-existing designation as to who the property gets transferred to, will not go through probate.

Examples are payable on death accounts, which immediately transfer by operation of law upon the death of the account holder, or property that is subject to a life estate which automatically transfers on death, might avoid probate court.

Anybody Who Stands to Gain, Can Challenge a Will

There is a difference between an heir, and a beneficiary. An heir — a relative of the deceased — can be, but doesn’t have to be, a beneficiary. Anybody who stands to gain from a will or from the distribution of an estate can challenge a will in court, and that person doesn’t have to be a relative or an heir.

Mental Illness Isn’t Enough to Challenge a Will

“Mental illness” is a vague term; the question is not whether the deceased was mentally ill when a will was created, but whether they understood what they were doing when they created the will, and appreciated the consequences of their decisions.

Call the West Palm Beach probate lawyers at The Law Offices of Larry E. Bray today for help answering your probate law questions.

Sources:

jud11.flcourts.org/docs/ProbateForms/1.%20Summary%20Administration%20Instructions%20(Intestate).pdf

help.flcourts.gov/Other-Resources/Probate