Common Misconceptions About Probate

Probate, the process involving the administration of a deceased's estate, is complex. Creditors, executors, beneficiaries, heirs, liquidators - there are many parties often involved in administering an estate.

Like any complex area of law, there are always common misunderstandings about the probate process. Below are several common myths worth noting - and debunking.

Four Misconceptions About The Florida Probate Process

Myth #1: If you have a Will, your estate will not go through the probate process

Even though a person's wishes are well-documented in a Will, naming assets and beneficiaries of those assets, it does not mean that that person's estate will bypass the probate process. In fact, "probate" is the process of validating and giving effect to the Will.

Taxes and debts of a deceased must be paid from the estate first before any property passes onto a named beneficiary. Further, the Will must also be accepted by the court as valid. It could prove to be invalid if the appropriate procedures were not followed for signing or a disgruntled family member claims the deceased was unduly influenced at the time the Will was executed.

Myth 2: The probate process takes years, often decades

It's true that the probate process takes time, mainly because creditors of the deceased must be provided an opportunity to file a claim against the estate for any outstanding debts.

The turnaround time will vary based on individuals circumstances; however, probate of a typical estate can be completed within five months to one year.

In rare instances, probate can last longer than a year, but this typically involves instances of very wealthy estates that continue to earn money after the decedent has passed away an estate with real property to be sold, or particularly valuable personal assets to be appraised and sold, estates embroiled in litigation matters and so on.

Myth 3: Nothing is left of the estate after probate because the process is extremely expensive

Probate can be expensive, but not as much as many people believe. The cost often depends on state law. In Florida, a cost-effective probate shortcut, known as summary administration, is available in certain instances for estate valued under $70,000.00 or when the decedent has been dead for more than two years.

In the event this summary administration is not available and the estate must proceed through the traditional probate process, state law determines a lawyer's fee for normal probate services, which is typically based on a small percentage of the value of the deceased's assets. However, the cost to probate an estate will always be based on individual circumstances. If litigation is involved or legal work is provided above and beyond ordinary services, the cost will be higher.

Myth 4: The oldest child of the deceased will always be the executor

When it comes to probate, an executor, known in Florida as a "Personal Representative," is needed to administer an individual's estate. In some cases, the executor is named in the Will. A court will typically appoint the person appointed by the deceased absent extenuating circumstances.

If the deceased did not appoint an executor, the court will select one based on the criteria established by state law, not necessarily the age of the decedent's children.

More Questions? Reach Out To One Of Our Attorneys

If you're still concerned about the probate process or have additional questions as they pertain to your specific situation, reach out to our team for guidance. Call 813-438-7119 today.

If you are looking to avoid probate, there are estate planning tools available. Learn more.