The legal definition of probate is “a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.” I find that most people who ask to have probate consultations were not aware that they even needed to be involved in a probate. The most common statement made by most individuals who consult with me is “well I have a power of attorney, so I do not have to go through the probate process.” A power of attorney ceases to exist the moment the individual giving the power has died. What this means is that the power of attorney dies with the person who gave the power. Probate is a legal process only available for the estate of individuals who have died.
Simply because an individual has died does not mean that they qualify for the probate process. Typically, probate is the process in which assets and debts are administered. If the individual did not have any assets, then it is very unlikely that a probate case would even have to be filed with the court. Most of the time if an individual only had debts then those obligations die with that person. If there are no assets, then the creditors have no recourse. There may be exceptions to this and that is why it is always important to seek legal counsel when it comes to these matters. When a person dies and has few assets then the estate may benefit from simply having a Summary Administration file. This is an abbreviated version of a formal probate.
A formal probate is when you open a probate case for someone who had substantial assets. If an estate is worth more than 75k then it generally qualifies for formal administration. Through the probate process, many things are determined and set the pace of the process. One of the most important facts to remember is if the decedent died with a Last Will and Testament (Testate) or without a Last Will and Testament (intestate). If a person dies with a Last Will and Testament then essentially the decedent has left a set of instructions for everyone to follow. The Last Will and Testament (if done in compliance with Florida law) will designate a person to be the executor/executrix of the estate. This person will then follow the last wishes of the decent and administer the estate according to the instructions left in the last will and testament. If a person dies without a last will and testament then Florida law dictates who is designated the “person in charge” also known as the personal representative. This person will then have to adhere to what the Florida Probate Code says must be done. Florida law states who will get to be in charge, who will inherit and who will be paid based on priority. Often we find that intestate succession is not what the decedent intended. However, since there was no last will and testament then Florida law prevails.
The best way to avoid having your estate fall into the hands of individuals you had not intended to would be to prepare your estate plan. An estate plan begins with a will or living trust. A will provides your instructions, but it does not avoid probate. Any assets titled in your name or directed by your will must go through your state’s probate process before they can be distributed to your heirs. Another common question asked by probate clients is, how much this will cost me? Unbelievably, some estates will not cost the heirs or personal representatives a dime or the individual may be reimbursed from the assets of the estate for all their expenses and cost. Probate fall into two categories 1) easy or 2) extraordinarily complex. It is important to seek the advice of a knowledgeable probate attorney. The attorney should be able to provide you with information and give you a piece of mind. You should always seek the advice of a legal professional that will be able to walk you through this process.
Rachel M. Alvarez, ESQ.
The Alvarez Law Firm, A Professional Association