Probate Made Simple
Probate is one of those legal terms that people can hear a lot and still not quite understand. Unfortunately, many generalist attorneys also misunderstand and misrepresent the term. In other words, you’re not alone if you need a refresher! One of the most common confusions we run into is when people mistake estate planning for probate… Or visa versa. Estate planning is what occurs while a person is still alive. This involves things like creating a Last Will and Testament, or creating a Trust. You and your attorney make these documents in preparation for your end of life. this process, meanwhile, takes place after death. This is the biggest distinction, but there is more to know.
People are bound to gain property, bank accounts, and other assets during their lives. An “estate” refers to a person’s total assets (including debt) after death. If you own a home, have money in your bank account, or even owe money to creditors, that becomes your estate. If your name is John Doe, the law will refer to your assets and debts as the Estate of John Doe.
What Is It?
Probate is the legal process of transferring assets from a dead person to a living person. Probate ensures that your rightful heirs and beneficiaries receive what they should… Whether the inheritance is money, property, or something else. This process will usually involve a full court process with a judge and probate attorney.
When Do I Need Probate?
Probate is a very common necessity in situations where ownership can be unclear. For example, a bank, lawyer, or insurance company requires paperwork. This paperwork can include Letters of Administration, Appointment, or Executor. It could also include anything like an Appointment as Personal Representative. You will also likely need probate if you want to transfer the deceased’s property into your name. This is true even if you want to sell or rent the property.
Probate helps ensure that your inheritance is completely safe from creditors. It is also an essential part of resolving disputes between family members. Frequently, families can disagree about who gets what – Even if a Will was present. Therefore, a Will does not remove the need for probate.
Is It Always Necessary?
Sometimes, the deceased owns no property and only has vehicles like cars or boats. In this case, you can usually resolve the issue of title transfers at the DMV. You will need your ID, the death certificate (a copy will do), and the title to the vehicle. If the deceased created a Trust, those assets might not need probate either. Certain language in real estate can also remove the need for probate. This is especially true when mentioning survivorship. It is always best to seek legal advice on when you need probate.
Are There Different Types of Probate?
There are four types in Florida. These are Formal Administration, Summary Administration, Ancillary Administration, and Disposition without Administration. The most common of these is Formal Administration. Here we ask the court to appoint an Executor to administer the estate. This is usually needed when the deceased has a bank account.
You may use Summary Administration as well. This is usually reserved for a person who has been dead for more than two years. Ancillary Administration is for non-residents who owned property in Florida. For example, if the deceased was a legal resident of Maine but owned property in Florida. Disposition without Administration isn’t exactly probate as there is no administration. This is usually used to reimburse those who paid the deceased’s final expenses.
You are bound to have more questions about probate as you navigate the process. Dowd Law Firm is here to help you. Our attorneys have experience in all aspects of probate law and are willing to help today. So call us for a consultation, and let us tell you how we can help.