Probate Isn’t as Bad as You’ve Heard
People often shudder with apprehension when they hear the word “probate.” If you feel this way, then you probably have heard that it’s an unpleasant experience that is both time-consuming and expensive. Although that may be true in some circumstances, it is not always the case. In fact, probate can be rather uncomplicated. Let’s get to know probate a little better and see if we can quell the anxiety you might be feeling about it.
The first question you may be asking yourself is what is probate? Probate is a court-supervised process to settle the affairs of a deceased person (known as the decedent) and transfer legal title of his or her assets into the names of the beneficiaries. Typically, the decedent’s assets will be used to pay for the probate proceeding itself, including court costs and attorneys’ fees, the decedent’s funeral expenses, and outstanding creditors. The assets remaining after those payments are satisfied will be distributed to the beneficiaries in accordance with the decedent’s Last Will and Testament or, if the decedent did not execute a Last Will and Testament, in accordance with state law.
The second question you may be wondering is what assets are subject to probate? Assets that are subject to probate are generally those that are titled in the decedent’s name alone. Examples of assets that are commonly subject to probate administration include, but are not limited to, bank accounts, investment accounts, retirement accounts, life insurance policies, and real property. Accounts that are payable on death or transferable on death may not be subject to probate. Additionally, an asset may not be subject to probate administration if it is jointly titled. Of course, the best way to determine which of a decedent’s assets, if any, will be subject to probate will be to consult an attorney.
The next commonly asked question is how long does probate take? The answer will depend on which kind of probate administration is appropriate under the circumstances. Florida has two types of probate administrations: summary and formal. Summary administration will only apply in cases where either the decedent passed away two or more years prior to filing probate documents with the court, or the decedent’s estate is valued at less than $75,000.00 (homestead property is not counted toward this value). Summary probate administrations are generally completed within one or two months. All other probates in Florida that do not qualify for a summary administration will be subject to formal administration. Formal probate administration usually takes six months to one year to complete. The horror stories you may have heard about probate administration dragging on for years most likely involved litigation, and that doesn’t necessarily mean litigation specific to the probate itself, such as a contested will. Florida law requires a formal probate proceeding where the decedent passed away during the pendency of any kind of litigation, or where a beneficiary is pursuing a wrongful death claim on behalf of the decedent’s estate. Litigation of any kind invariably leads to a longer than usual probate proceeding in most, but not all, cases.
Another question most people want to know is how much does probate cost? The answer probably isn’t as cut-and-dry as you might be hoping, because this is going to vary, not only by the complexity of the estate, but from one attorney to another. Florida law provides that attorneys assisting in probate administration are entitled to “reasonable compensation,” and outlines what is presumed reasonable based on the value of the decedent’s estate. For most estates this can be as much as approximately 3% of the estate assets. Alternatively, an attorney may charge an hourly rate, which is generally based on an attorney’s level of experience. In addition to calculating attorney’s fees based on a percentage of the estate or by the hour, an attorney may charge a flat fee for summary probate administrations. Ultimately, the cost of the probate is going to vary from one attorney to another.
Finally, you might be wondering, are there any benefits to probate? Yes, there are benefits to probate. In situations where a decedent did not execute a valid Last Will and Testament, probate provides a procedure to distribute the decedent’s estate to the heirs at law, and where the decedent did execute a Last Will and Testament, probate validates and enforces the decedent’s final wishes. Another benefit of probate is the ability to limit the period in which creditors may bring claims against the decedent’s estate from two years to 90 days. In addition to limiting the timeframe in which creditors can bring claims, it provides an opportunity to object to or reduce the amount of a claim against the estate. Another benefit often overlooked is the court’s neutral oversight of the probate administration could deter potential conflict among family members and friends. Lastly, of course, probate finalizes decedent’s estate and affairs, providing closure for his or her survivors.
In conclusion, probate isn’t necessarily the nightmare scenario you might be anticipating. There are many factors that determine how complex the process may be, but those can be mitigated by engaging the right attorney who can help you navigate the probate process and make it seem relatively effortless. By the end of it, you may even find yourself wondering why you were so worried in the first place.