Palm Beach County Probate Attorney
Since everyone dies sooner or later, probate is one of the most common legal actions. Of course, some people die without assets, and certain types of assets are not distributed through the probate process anyway. The larger the probate estate is, the more complex it is likely to be, and the more likely you are to need the assistance of a Palm Beach County probate attorney. In fact, the use of a lawyer may even be a legal requirement.
Following is a brief overview of what happens to someone’s assets after they die.
Certain assets are not subject to the probate process, including:
- Assets that the deceased held in joint tenancy or tenancy by the entirety. Upon death, these assets pass automatically to the other tenant. In tenancy by the entirety, the other tenant is always the deceased’s surviving spouse, if any. Such assets may include real estate, such as the family homestead.
- Assets held in a living trust. These assets pass to the beneficiaries of the trust. They may or may not pass immediately upon death — in fact, assets may pass gradually over a period of many years, depending on the terms of the trust.
- Assets for which a beneficiary is named, such as a life insurance policy, assets in an IRA or a 401(k), money held in payable-on-death bank accounts, and similar financial instruments. These assets pass to the beneficiary automatically up death.
- Other assets for which a beneficiary is named, such as pension distributions or survivors’ benefits. These assets may be distributed on a periodic basis (typically monthly) for a certain time or for the remainder of the beneficiary’s life.
With proper estate planning, you are likely to be able to keep a significant portion of your assets out of probate — perhaps all of them. The advantage to keeping your assets out of probate, of course, is that you don’t have to wait for probate proceedings to conclude, months or perhaps even years down the road (if litigation erupts). Instead, you can take possession of them immediately.
Summary administration could be called “probate lite.” It is designed to deal with small, simple estates by dispensing with the red tape associated with formal probate. No personal representative (see below) is required for summary probate proceedings.
Summary administration is an option under either of the following circumstances:
- If the total value of estate assets that are not protected from creditors, such as bank accounts, total $75,000 or less; or
- If more than 2 years have elapsed since the deceased died.
It is not always as simple, as that, of course, but the foregoing represents a simplified explanation of eligibility for summary proceedings.
To put it simply, in formal probate, an interested party submits the deceased’s last will and testament to the probate court. The court will appoint a personal representative, also known as an executor, of the “probate estate” (the assets of the deceased that are subject to probate). Normally, the personal representative is the personal named as such in the deceased’s last will and testament.
The personal representative will pay estate debts (funeral expenses, credit card debts, etc.), collect debts owed to the estate, and distribute the assets as instructed in the deceased’s last will and testament, all under the supervision of the probate court. If any interested party (anyone who stands to gain or lose by the proceedings) files an objection with the court, the court will resolve any resulting dispute. When all of this has been accomplished, the probate court will formally close probate.
If No Valid Will Exists
If no valid will exists, estate assets will pass under Florida’s intestate succession laws. Florida’s intestate succession laws favor relatives, in order to the closeness of the relationship with the deceased, and distribution depends on who was alive on the date that the deceased died. The deceased’s spouse is top property if he or she survives the deceased.
Unfortunately, when a large amount of assets is at stake, probate litigation often erupts. Following are the most common forms of probate litigation.
- Will Contests: There are several common grounds under which a will can be invalidated, such as: (i) undue influence (ii) lack of appropriate formality (there were no witnesses, for example) (iii) incapacity (lack of mental competency, for example), (iv) fraud and (v) insane delusion.
- Personal representative/ executor misconduct: The personal representative is held to a high standard of conduct with respect to the estate, and he or she must observe certain fiduciary duties such as the duty of care and the duty of loyalty. Improper gifts, self-dealing, commingling of estate assets with personal assets, and creating losses to the estate through careless acts or omissions are all forms of misconduct..
- Spouse’s elective share: Under Florida probate law, a spouse cannot be completely disinherited. He or she is legally entitled to an “elective share” — roughly 30 percent of the probate estate. If disinherited, the surviving spouse must act to claim this share — it does not pass automatically.
If a probate dispute erupts, the Florida probate code as well as strict rules of civil procedure and evidence apply, and some of these legal principles are arcane and complex. Don’t attempt to represent yourself or the estate even if the probate court allows you to.
Some of Our Other Practice Areas
Jose Lorenzo is a probate lawyer and a member of the Florida Bar, with years of experience practicing law in the following areas (among others):
- Estate planning and probate
- Personal injury
- Probate litigation
- Probate trust administration
- Special needs planning
- Real estateprobate planning
- Many other areas of practice relating to probate, estate planning and personal injury.
The Time to Act is Now.
At Lorenzo Law, we know how to handle your probate problems, because we have been solving similar problems for years now. The reputation of firm founder Jose M. Lorenzo is flawless. He is rated 5/5, a perfect score, by the prestigious attorney rating service Avvo.com, based on over 50 reviews. Our law firmoffers legal servicesand legal adviceto clients throughout Palm Beach Countyincluding Boca Raton, West Palm Beach, Jupiter, Palm Springs and beyond.
Call us at (305) 999-5411, fill out our online contact form, email us at email@example.com or visit our office at Coral Gables or Ft. Lauderdale. Let Lorenzo Law put its years of experienceto work for you.