A Firm Providing Skilled Representation In Probate And Trust Administration Matters
Going through probate would be a difficult process even for those who hadn’t just lost a loved one. Unfortunately, this is precisely the circumstance under which probate happens. During such a difficult time, it is wise to work with an experienced and caring probate attorney who can guide you through the process and ensure everything goes smoothly. In Coral Springs and surrounding areas, you can find the help you need by contacting Feldman & Feldman, Counsellors at Law, P.A.. Our estate planning lawyers have been serving clients in South Florida for more than 30 years, and we are committed to providing exceptional representation and service.
Table Of Contents
What Is Probate, And What Does It Entail?
Avoiding Probate Is Often A Goal Of Estate Planning
There Are Cases In Which Probate Cannot Or Should Not Be Avoided
Trust Your Probate Needs To Our Skilled Estate Lawyers
What Is Probate, And What Does It Entail?
Probate, put simply, is the court process by which a personal representative (called an “executor” in some states) is appointed to gather the assets of the deceased person (called the “decedent”), pay any legitimate debts of the decedent’s estate, and then distribute the remaining assets to the proper beneficiaries.
There are many steps involved in a probate proceeding, including sending proper legal notices, meeting deadlines and satisfying other statutory requirements. A probate proceeding also involves court costs, regular court appearances and legal fees. It can be a lengthy, and sometimes expensive process because of the formalities that must be followed to protect the rights of estate beneficiaries and creditors. Typically, the probate process lasts 6-12 months, and possibly longer in more complicated estates. Court delays and uncooperative parties can also slow probate proceedings.
Avoiding Probate Is Often A Goal Of Estate Planning
For all the reasons mentioned above, many people want to simplify the probate process as much as possible or avoid it altogether. This can often be done through thoughtful estate planning. Only assets titled in the sole name of the decedent are subject to a probate proceeding. Assets with joint owners and those with a named beneficiary are not considered estate assets and a probate proceeding is not necessary to pass ownership to the surviving joint owner or beneficiary.
Common estate planning tools for avoiding probate obligations include:
- The use of “payable on death” accounts
- Beneficiary designations for things like insurance policies
- Establishing a revocable living trust
It is always wise to consult an attorney to discuss the options for ensuring that your wishes will be carried out most effectively and efficiently after your death.
There Are Cases In Which Probate Cannot Or Should Not Be Avoided
We often assist our clients with structuring their assets to “avoid probate,” which can drastically reduce the time and expense of passing their estate to the intended beneficiaries, as well as potentially thwart many creditors (who can only make a claim against estate assets). However, there are a number of important reasons why probate is sometimes necessary and even advisable:
If assets are not titled with a named beneficiary or joint owner (for any number of reasons) then a probate proceeding is the only way to pass title to the proper beneficiary.
1. A person may pass away under circumstances that require opening a probate proceeding to handle wrongful death or other claims on behalf of the deceased person’s estate.
2. Sometimes an individual places their assets in a revocable living trust during their lifetime in order to avoid the need to probate those assets. However, if the trust is not fully funded, and there are assets not titled in the trust at death (such as a forgotten-about bank account), a probate proceeding is necessary to have those assets placed into the trust for distribution.
3. In Florida, most creditors have 2 years from the date of the decedent’s death to make claims against an estate or trust. It is sometimes advisable to open a probate proceeding for the purpose of shortening the timeframe in which creditors have to file a claim. Depending upon the type of creditor, the opportunity to present a claim can be shortened from 2 years to only 90 days, or sometimes just 30 days. Even if the decedent had all of their assets in a trust at the time of death, and there are no estate assets, a trustee who distributes assets without the creditor-clearing benefits of a probate proceeding risks being personally liable for any creditor claims that may arise within 2 years of death.
4. Avoiding probate can be catastrophic to beneficiaries or joint owners who have special needs or who receive public benefits (Medicaid, VA benefits, etc.), as inheriting an asset directly can cause them to lose their benefits entirely. Establishing a trust for the beneficiary can ensure they receive the benefit of their inheritance but do not lose their benefits. It is sometimes better to establish such a trust under a decedent’s will (as opposed to funding the trust during the decedent’s lifetime), even though it will require a probate proceeding in order to set up the trust.
Seeking the advice of an attorney is critical to ensure your estate is structured to maximize the benefit to your intended beneficiaries. And if you are a beneficiary, nominated personal representative, or trustee, you should consult with an estate attorney who can properly advise you of your rights and responsibilities.
How Our Firm Can Help You
Our estate planning attorneys provide, compassionate, caring and professional legal support when you need it most. We can handle most of the probate details personally, leaving you free to focus on taking care of yourself and those you love. We work closely with estate executors/representatives to help them fulfill their duties, and we ensure that all paperwork and other documents submitted to the court are complete and accurate.
Settling a loved one’s estate sometimes involves selling real property. This may be out of necessity to satisfy estate creditors or simply to turn a property inheritance into financial proceeds for heirs and beneficiaries. Our firm can help you with selling real estate as part of the estate administration process, if needed. It is one of the many ways that we strive to go the extra mile for our clients.
Trust Your Probate Needs To Our Skilled Estate Lawyers
We encourage you to schedule an initial consultation by calling our Coral Springs office at 954-228-6074 or using our online contact form.