Most people are lucky enough to only have to deal with death a few times in their lives. Even fewer people will be charged with the task of arranging the affairs and distributing the assets of the deceased. When a person dies, there is a tremendous amount of emotional strain on the family and friends that are left behind. Dealing with the stress of probate is an unnecessary ordeal that can be avoided by hiring an attorney skilled in both estate planning and probate.
Probate is the legal process by which property in an estate is transferred to the heirs or beneficiaries of the deceased person. The process begins with a petition filed with the court that lists all of the property of the deceased and the people to whom the property is to be given. In larger estates, there are often conflicting interests among family members and the probate process can become more contested and expensive. Typically the probate process will take between 6 and 18 months for an estate under $1 million and may cost somewhere between 3 and 7 percent of the total estate.
Contrary to a popular misconception, probate is necessary whether or not you have a Will. If a person dies with any property owned in his or her individual name, probate is required. Florida has two different probate procedures depending on how large the estate of the decedent is. For any estate over $75,000, formal probate proceedings are necessary. However, if the estate is under $75,000 without any real estate and only a small amount of personal property, the estate may be streamlined through a summary probate administration.
In addition to the litany of forms that need to be completed for the court, all required persons need be notified and the proper probate procedures must be followed. Florida Probate Rule 5.030 requires that a personal representative be represented by an attorney unless he or she is the sole interested party. At least one Florida court has ruled that until three years after death, there might be other interested parties and therefore, an attorney is required.
The best way to avoid the probate process is by utilizing a living trust as the foundation of a comprehensive estate plan. You will still need the services of an attorney for the administration of the trust but that process is much faster and much less expensive. For any friends or family that were unable to get their estate plan situated in time, a good probate attorney can help to limit the stress and expense of the probate process.