A common question we get is “The property was taken care of in a will, do we need to do probate?” This is one of the questions when I can confidently say “Yes, you’ll probably need probate.” This is true in every case where there’s a third party who keeps track of who owns a particular asset, and there are no beneficiaries or other transfer on death provisions made. You can see more details on our previous post Do I need probate for Florida assets?
What this means, unless you’ve created a trust, or made beneficiary designations, your assets will need to go through probate. Probate means the personal representative, their attorney, and possibly interested parties’ attorneys are going to roll up their sleeves, dig through the decedent’s life and generally put as much information on the record as possible.
The court wants to know everything about the estate. Within 60 days of the letters of administration, there must be an inventory. This may be as simple as checking a few account balances, and getting a comparative market price report on a home, or it could mean hiring professional business valuation experts. Either way, all of the decedent’s assets, heirs, and creditors will be on the record.
One good thing is that in Florida, probate records are not available online to the general public. That means if you’re not the attorney of record, you’d have to go to the courthouse if you want to see the case documents. Otherwise, anyone who walks in off the street can look at the case file if they’re at the clerk’s office.
It’s the second most uncomfortable questions I have to ask at my consultations for estate planning and probate: “Are there any children not common to the marriage?” This is usually answered with “There was no previous marriage.” Then the most uncomfortable question: “What about children born to someone to whom the decedent was not married?” Yeah, I just asked if your dad had any illegitimate kids. Pretermitted children have rights, even if there’s a will.
Under Florida Statutes § 732.302, a pretermitted child is one born or adopted after the will is executed, and who receives nothing from the will, unless the will indicates the child was intentionally omitted. Alternatively if the decedent had one or more children when they made the will, and all of the children were with one co-parent, and that co-parent survived the decedent, then children omitted from the will would not be entitled to anything. See why it would be helpful to have an attorney work with you on this?
The court needs to know everything. This is one reason trusts can be so useful. The scope of the beneficiaries is limited within the trust, and with a pour-over will there’s only one beneficiary- the trust.
Once the assets are out there, and the family laundry has been aired out, creditors will come-a-knockin. Not literally, but they’ll send statements of claim. Even creditors you didn’t know about will pop up and slow the process. You can object, and in most cases should, because if they can’t prove up their claim the estate may not need to pay it.
These are many of the reasons we want people to avoid probate. It’s uncomfortable to have all of your family business out there. Even when there’s not much in the way of assets, and there are numerous creditors some people are embarrassed to admit these things about their parent or loved one.
As Florida Estate Planning and Probate attorneys we can use trusts, special types of deeds in conjunction with beneficiary designations, and other techniques to avoid thrusting your deceased family member’s most intimate personal and financial details into the public sphere. The sooner you come to us the better. Call or email using the link above to schedule your free consultation.
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