A probate attorney assists a client with the transfer of a loved one’s assets after his or her death, which is also known as the probate estate. If you lose a loved one, it is important that you or someone related to your loved one talk to a probate attorney. A probate attorney will be able to determine if your loved one’s estate requires probate administration and will be able to explain the probate process. If your loved one requires a probate administration, a probate attorney, working with the personal representative, will administer the probate estate. This will ensure that your loved one’s assets are transferred in accordance with the law and your loved one’s wishes.
Common legal terms used when lawyers talk about probate
These are some common legal terms associated with probate law:
- Administration – The act of going through the legal process required by Florida law to pay a decedent’s creditors, and transfer a decedent’s assets in accordance with the law and the decedent’s wishes.
- Creditors – People or businesses that the decedent owed money to at the time of death.
- Decedent – The person who passed away. Usually probate cases are named The Estate of and then the decedent’s name.
- Estate – The legal term that refers to the all of the assets owned by a decedent at the time of death.
- Intestate– This is when a person dies without a will. If the decedent had an valid will at the time of death, they are considered Testate.
- Personal representative – The person who is in charge of the estate’s assets and administration. In Florida this person is called the personal representative, but you may have heard this person referred to as an executor in other states. The personal representative is usually named in the decedent’s will, but is determined by statute if there is no will.
What is probate?
Probate is the legal process required to pass title of assets to those entitled to receive it after the owner of the property dies. Assets such as real property, assets that require a title (such as a car), and other specific assets must pass through probate in order to be sold, conveyed or otherwise transferred. Additionally, any debts owed by the decedent at the time of death will need to be paid out of the decedent’s assets before any distributions to the beneficiaries is made in the probate case.
Who needs to go through the probate process?
If a person owns assets at the time of their death, probate is usually necessary to distribute those assets in accordance with the law. If you have been named in a will as a beneficiary or a personal representative, you should speak to an attorney as soon as possible in order to find out what the next steps are and what rights you may have. Usually, the person named as the personal representative will choose the probate attorney to administer the decedent’s estate. However, if you are a beneficiary in a will or relative of the decedent, it may also be important to talk to a probate attorney to make sure that any assets that the decedent wanted to be transferred to you are in fact transferred in accordance with the decedent’s wishes.
Even if someone has a will, a probate case must be initiated in order to properly transfer the assets in the decedent’s wishes as set out in the will.
Is a probate attorney required?
Usually yes. Sometimes if a decedent does not have a lot of assets, the decedent’s estate will qualify for summary administration under Florida law. In a probate case that qualifies for summary administration, an attorney is not required. However, no matter what the amount of assets that a decedent has, it is still important to talk to an attorney first, in order to make sure that the decedent’s estate will qualify for summary administration and so that you are fully informed of the risks of going it alone.
Even in a summary administration, there are some protections from creditors available for the primary residence of the decedent, along with a certain amount of furnishing, fixtures, and personal property located at the decedent’s primary home. Obtaining these protections require additional petitions.
An important reason to hire an attorney is that probate cases can be a minefield. There are deadlines for filing certain documents and missing a deadline can adversely impact the administration of the probate case. Also, notice is required to be given to all creditors of the decedent. If the proper notice, as required by Florida law and probate rules, a creditor can surface later and make claims that may have to be paid! A mistake in the probate administration can cost valuable time and money. It is always less expensive and easier to hire an attorney at the beginning of a complex endeavor, like a probate administration, rather than hire the attorney after something has gone wrong.
What assets are exempt from the claims of creditors?
Under Florida law, some assets that were owned by a decedent are exempt from the claims of creditors. This is another area where hiring an attorney is extremely helpful. If the right documents are not filed on time, these exemptions may be waived by the personal representative and the beneficiaries of the decedent’s will. An experienced probate attorney will be able to make sure these assets are protected from creditors involved in the probate administration. These assets include:
- The decedent’s homestead – this is the home where the decedent lived at the time of his or her death.
- $1,000.00 or personal property
- Up to $20,000.00 in value of household furnishings, furniture, appliances located in the decedent’s homestead.
How much does it cost to hire an attorney to represent you in a probate case?
The cost of probate varies based on the size and complexity of the estate. Attorney’s fees for the administration of a probate estate are set by Florida Statute 733.6171. The presumptively reasonable attorney’s fees vary based upon the value of the assets that are involved in the probate estate. The minimum presumptively reasonable attorney’s fee is $1,500 for estates that are valued less than $40,000.00 Take a look at the statute through the link above to see how the presumptively reasonable fee increases with the value of the estate. These fees usually do not include fees for work done outside the scope of administering a probate estate, such as litigation, objections to claims of creditors, or representation in any other capacity.
In future blog posts, we’ll review some of the steps involved with the probate process in more detail. Consulting with a probate attorney is valuable after losing a loved one. Probate administration is one of the main practice areas at Richert Quarles P.A. Schedule a free consultation today if you are in the process of looking for a probate attorney.