Probate
Probate
A Probate is a court supervised process for identifying and gathering assets of a deceased person.
- The Process of winding down a decedents affairs
- Appointment of a personal representative
- Determination of validity of will
- Paying claims
- Distributing assets
- Filing necessary tax returns
It is important to know that having a will does not avoid Probate. If you want to avoid Probate you will need a trust based estate plan. Contact Vaughn Law for a consultation to discuss this further.
Summary Administration vs. Final Administration
There are different types of Probate Administration in Florida.
Formal Administration is the traditional procedure for winding down a decedent’s affairs. This procedure can be used with any Probate regardless of assets but is a lengthy process that requires proper notice to be provided to those creditors who are known or unknown to the estate.
Summary Administration is an expedited process to wind down a decedent’s affairs for small estates.
To qualify for a Summary Administration the following must be true:
- Less than $75,000, and
- Dead more than two years
- Or if the decedent only owned a homestead property, regardless of value
Process of Probate
- Open the Estate
- Intestate vs. testate
- Prove the Will
- Letters of Administration
- Administer the Estate
- Gather and inventory the assets
- Provide notice to creditors
- Deal with creditors
- Sell Assets
- File Necessary income tax returns
- Close the Estate
- Obtain Orders to sell assets
- Transfer assets to beneficiaries or Heirs
- Final Accounting
- Closing letter from IRS
How do the Estate Documents affect a Probate?
| WITH NO WILL | WITH A WILL | WITH A TRUST | |
|---|---|---|---|
| At Incapacity (unable to handle your financial affairs) | Court Control: Court appointee oversees your care, must keep detailed records, report to the court and usually post a bond (even if appointee is your spouse). Court oversees and approves all expenses & financial affairs. | Court Control: Same as no Will. | No Court Involvement. The named successor trustee manages your financial affairs and distributes your estate according to the instructions I your Trust. |
| At Death | Probate: Court orders your debts paid and assets distributed according to state law. | Probate: Same as no Will, but assets distributed per your will (if valid and any contests unsuccessful | No Probate. Debts paid and assets distributed by named successor trustee pursuant to Trust provisions. |
| Costs: Court, Legal and Executor | Death: Estimated 3-8% of estate’s value. Incapacity: Costs increase due to additional oversight | Same as no Will Costs may increase if Will is contested. | Minimal or no court costs. Reduced legal fees. |
| Time | Death: Usually 6 months to 2 years. Can be longer if sale of real property involved. Incapacity: Court involved until recovery or death. | Same as no Will. | Death: Assets distributed and debts paid within a short period of time unless Trust specifies payment to an heir/beneficiary over time. Complex estates may take longer for tax returns. Incapacity: No delays. |
| Flexibility & Control | None: Court processes, not your family; you have no control at incapacity or death. Whey you die assets are distributed according to state law. | Limited: Same as no Will, except when you die assets are distributed according to your Will. | Maximum. You may change or terminate your Trust at any time. Assets remain in your Trust regardless of incapacity or death. |
| Privacy | None: Court proceedings are public. | None. Same as no Will. | Maximum Trusts are not public. Your estate and distribution of assets remains private. |
Problems with Probate
- Invitations for controversy or dispute
- Expensive for court costs and attorney fees
- Lack of Privacy the proceedings are public
- Potential for delays
Benefits to Probate
- Resolve creditors claims with finality
- The proceeding is supervised by the court to ensure assets are properly disbursed
- If you know there will be controversy
- Trust issues
How to Avoid Probate
Ensure there are no assets in the client’s name that do not automatically transfer to another upon the client’s death.
- Deeds
- Life Estate Deed, or Enhanced Life Estate Deed or Lady Bird Deed
- Joint Ownership
- Real Estate and joint bank accounts
- Lifetime Gifts : a gift made during the life of the decedent removes it from the estate
- Beneficiary Designations:
- Payable On Death (POD) – cash distributed to beneficiaries
- Transfer on Death (TOD) – assets distributed to beneficiaries
- Revocable Living Trusts
- Fully funded Trust means that the Trust will handle assets at decedents death
Get in touch with us
Vaughn Law offers its clients a different, more personalized and service orientated approach, by tailoring its representation to its client’s needs. At Vaughn Law, we understand that this may be an overwhelming, unfamiliar and stressful time for our clients, therefore we strive to help our clients understand the intricacies of the legal system and to keep them informed throughout the process.
Address
350 Corey Avenue, St.
Pete Beach, FL 33706
