What Is Probate?
Probate is a legal process that occurs when someone passes away. The probate process validates a will (if there is one) and works to distribute the decedent’s assets in the appropriate manner. The probate process can take anywhere from months to years and is really dependent upon how complex the estate at hand is. Throughout the probate process, there are several processes, procedures, and deadlines that may feel complex and overwhelming. Often, at these points is where you will determine if you need a Florida probate lawyer.
What Is a Probate Lawyer and What Do They Do?
A probate attorney is an attorney who focuses on estate planning and the probate process. They’re experienced at working with the executor to get the estate through the probate process and distributed to the beneficiaries.
After a loved one passes away, their assets, also referred to as their estate, must be distributed to beneficiaries, which includes assets like bank accounts, vehicles, jewelry, real estate, and personal property. Any asset that is owned by the decedent must go through probate unless there is a named beneficiary (such as an insurance policy) or there are rights of survivorship (such as real estate).
Probate With a Will
A will is a document that details who receives what property when someone passes away. The will generally names an executor, which is the person who is responsible for distributing the decedent’s estate to the named beneficiaries. Upon the decedent’s passing, the will is provided to a judge to be admitted to probate, which means that the court will review the will to confirm it is valid. Under Florida law, the will must be signed by the individual writing the will and be signed by two witnesses. Florida law does not require that the will be notarized, but notarized wills are easier to admit.
After the will has been admitted, the administration will occur. Administration can be a lengthy process that involves taking an accounting of the decedent’s assets, providing proper notice to beneficiaries and handling any beneficiary disputes, and managing any creditor claims. An experienced probate attorney will be familiar with the administration process and can guide you through the necessary steps. When the administration has been completed, the probate judge will sign an order allowing all the property to be transferred, and the probate process can be concluded.
Probate Without a Will
If an individual passes away without a will or other estate plan, Florida law will govern how their estate is distributed. This process is commonly referred to as intestate succession. As a general rule, the individual’s assets will go to their spouse and closest relatives.
Even though there is no will, the estate will still go through the probate process in order for the assets to be formally transferred to the intestate successors.
How a Probate Attorney Can Help You
The probate process is time-consuming and complex that comes at a time in your life when you should be focusing on grieving your loss. An experienced probate attorney can take the burden off you and help make the probate process easier. Your attorney’s knowledge of Florida law and the court system will help ensure that mistakes are not made that will hold up the probate of the estate.
One important role your attorney plays is to help determine who is entitled to the estate and effectuate those transfers. An attorney can help by assisting the executor with the following:
- Determining and paying any taxes due, such as estate taxes, income taxes, or inheritance taxes
- Identifying and creating an accounting of all estate assets
- Setting up and managing a checking account for the estate
- Paying any debts and final bills owed by the estate
- Ordering any appraisals that may be necessary (occurring most frequently with real estate and jewelry)
- Making final distributions and retitling assets in the names of the beneficiaries
Most wills are uncontested, but if there are any objections to the will or the distributions, that may lead to disputes and, potentially, probate litigation.
Probate Litigation
While most estates can be probated without litigation, there are often disagreements among family members regarding the estate. Your probate attorney will help mediate these disagreements, hearing each party’s viewpoint and working to come up with a solution that follows the will and is acceptable to the parties involved. In the event that parties cannot come to an agreement on key aspects of the probate of the estate, litigation may occur. Common reasons for probate litigation include:
- Determining who should serve as executor
- Determining the validity of the will
- Determining if the estate has been fairly divided.
Contested Wills
If the will is being contested, it will be up to the courts to hear arguments from both sides to determine if the will is valid or not. There are several reasons why a will may be contested:
- Technical deficiency – In order for a will to be valid under Florida law, certain specifications, such as witnesses, must be met. If those are not in place, the will may not be considered valid.
- Lack of capacity – Illnesses such as dementia or Alzheimer’s may cause an individual to lack the capacity necessary to create a will. To have capacity, it’s critical that an individual understands the meaning of the will and what it is accomplishing.
- Fraud – There are two common types of fraud related to wills. Fraud in the inducement involves instances when the individual was intentionally misled about important matters that affected the distributions the individual made in their will. Fraud in the execution involves instances where the individual is led to believe that the document they are signing is something other than a will.
- Undue influence – Undue influence is similar to fraud but refers to instances when someone who will benefit from the will and has a confidential relationship with the individual influences the contents of the will and the distribution thereunder.
Executor and Estate Litigation Matters
Disputes may also arise related to who is the executor of the estate and the appropriateness of that person’s actions. A beneficiary may seek to have an executor removed if they feel that the executor is not fulfilling their duties under the will. Some frequently seen grounds for removal include misappropriation of assets or failure to protect estate property. The court has the option of removing and replacing the executor or appointing someone to assist the executor.
Attorney Thomas Upchurch has experience handling a multitude of estate matters, from estate administration to probate litigation, will contests, and undue influence claims. If you are the executor of an estate or the beneficiary of an estate and are experiencing these types of disputes, don’t face them alone. An experienced probate attorney, like Thomas Upchurch, is dedicated to fighting for your rights and ensuring you and your family are taken care of.
How to Choose the Right Probate Attorney
There are numerous attorneys out there, and it can be a challenge to choose the right lawyer to help you with the probate matters you are handling. What follows are a few questions you should ask before retaining an attorney.
How long have you been practicing law, and what areas of law do you focus on?
Just because an attorney can represent you in a probate case doesn’t mean they are experienced in probate matters. Since estate planning and probate have complex processes, it’s wise to go with an attorney who practices mainly estate planning and probate. It is also a good idea to consider the locations in which your attorney practices. Each court and judge may have a slightly different way of doing things. Finding an attorney who has experience with your particular jurisdiction can be useful to keep the process moving smoothly.
Have you handled cases similar to mine before?
This question is especially important to ask if you have a unique situation, such as a very large estate, complex financial arrangements, or intricate distributions. You’ll want an attorney who is knowledgeable about the specific issues that may arise during the estate administration process and who can help prevent unnecessary delays and disputes.
What are your fees for this matter?
Attorney fees for estate and probate can vary widely. Some attorneys will charge an hourly fee, while some may charge a flat fee. Florida is one of the few states that allows the attorney to charge a percentage of the value of the estate. Those fees currently are:
- $1,500 to $3,000 for estates valued between $40,000 to $100,000
- 3 percent for estates valued between $100,000 to $900,000
- 2.5 percent for estates valued between $1 million to $3 million
- 2 percent for estates valued between $3 million to $5 million
- 1.5 percent for estates valued between $5 million to $10 million
At Upchurch Law, Thomas Upchurch has several years of experience focusing on all issues related to estates and probate and can provide the highest quality legal counsel regarding these matters. If you or a loved one is dealing with a probate matter, contact Upchurch Law today to schedule a consultation and see how we can help you.
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