Probate Administration in Indialantic, Melbourne, Palm Bay, and Viera Florida
Probate is an upsetting event after suffering the loss of a loved one and involves a multitude of details to settle their final affairs. The last thing anyone wants to do is fight with family members, creditors, the IRS, business partners, or even the probate judge. For a novice, navigating the environment of a probate estate from beginning to end can be a daunting task, fraught with traps for the unwary. As seasoned professionals, we help ensure the estate passes smoothly into the right hands, no matter the size of the estate. Also, we keep our eyes on the ball when it comes to minimizing and avoiding taxes in the process to pass the maximum amount of wealth possible to heirs.
What is the Probate Process in Florida?
Probate is a court-supervised process by which the property of a decedent is retitled in the name of the beneficiaries, and creditors are paid. The person in charge of this process is the personal representative (referred to as an executor in states other than Florida). By law, the person who is seeking to be appointed personal representative needs to hire a Florida attorney to assist them with the court procedure if they are not both the sole beneficiary and sole named personal representative (Rule 5.030, Florida Probate Rules).
Probate: What it is and how it works
Can I Avoid Probate in Viera, Florida, with a Will?
It seems that many laypersons think that simply having a will avoids probate. Unfortunately, that is not the case. A will simply tells the Florida probate judge, who may act as personal representative to receive assets and oversee their distribution. Likewise, a person can’t avoid probate by failing to draft a will. The state of Florida steps in and, in a process called “Intestate Succession,” takes control over assets and the distribution of those assets, and you or your heirs may very much dislike the results.
The probate court in Brevard County has jurisdiction over both the personal representative and the assets of the decedent. The primary purposes of probate are to:
- Protect the heirs from fraud and embezzlement in Florida;
- Protect the government so all taxes are paid by the estate, but pursue opportunities to minimize taxes (professional expertise is recommended); and
- Protect creditors of the decedent, so they are paid, but not overpaid.
What is the Probate Administration Process in Melbourne, Florida, and Surrounding Areas?
Probate usually begins when the will is admitted to the probate court, and the personal representative is granted “Letters of Administration.” Probate ends when all required taxes are paid, creditors are settled, and assets are accounted for and distributed as provided in the will. In certain instances, administering an estate through probate may be appropriate, even desirable, over a trust administration, given the orderly nature of probate.
Why? The probate process is overseen by a judge who ensures that the will maker’s wishes are carried out. Probate also can be very efficient and effective when the estate is well-organized before death, minor children are involved, or sensitive issues, like family members with special needs, or even substance abuse affecting one or more heirs are at stake.
As with any legal proceeding, there are technical aspects to Florida probate administration that an experienced Florida probate attorney would be familiar with:
- Beneficiaries and creditors need to be notified and legal notices published,
- Personal representatives need to be guided in how and when to distribute assets and how to take creditors’ rights into account, and
- A Petition to Appoint a Personal Representative may need to be filed, and Letters of Administration obtained.
Florida Homestead Property Probate Administration
Homestead property, which follows its own set of unique and complex rules in Florida, must be dealt with separately from other assets. There are time factors involved in filing and objecting to claims against the estate.
- There may be a lawsuit pending over the decedent’s death or pending suits that are now continuing.
- Real estate may need to be sold to ensure the correct distribution of assets according to the estate plan or merely to pay debts.
- Estate and income taxes must be considered if the estate exceeds certain thresholds.
Rest assured that we will legally minimize or avoid any unnecessary taxes. We have helped many personal representatives and trustees save hundreds of thousands of dollars in taxes in the last few years. Other assets may need to be transferred from the decedent to their heirs.
Should it not go as smoothly as described above, our experience includes:
- Breach of trust
- Elective share disputes
- Guardianship and guardianship disputes
- Fiduciary conflicts of interest
- Formation, modification, and termination of trusts
- Prudent investor rules
- Accounting controversies
- Fee disputes
- Agency under powers of attorney and health care surrogate designations
- Other disputed claims
Our clients include businesses, families, individuals, and charities.
Every estate probate process is unique, and our experienced attorneys and staff can guide the personal representative through the various steps and duties required. Probate is a wilderness, and we are familiar with the terrain.
Please explore our website to learn more about our practice areas in estate planning and elder law, including special needs planning, Dementia/Alzheimer’s planning, probate, and trust administration. Please contact us to meet with one of our experienced attorneys.