When a loved one passes away, his or her estate often
goes through a court-managed process called probate or
estate administration where the assets of the deceased
are managed and distributed. If your loved-one owned
his or her assets through a well drafted and properly
funded living trust, it is likely that no court-managed
administration is necessary, though the successor
trustee needs to administer the distribution of the
deceased. The length of time needed to complete the
probate of an estate depends on the size and complexity
of the estate and the local rules and schedule of the
probate court.
Every probate estate is unique, but most involve the
following steps:
-
Filing of a petition with the proper probate
court.
-
Notice to heirs under the Will or to statutory
heirs (if no Will exists).
-
Petition to appoint Executor (in the case of a
Will) or Administrator for the estate.
-
Inventory and appraisal of estate assets by
Executor/Administrator.
-
Payment of estate debt to rightful creditors.
-
Sale of estate assets.
-
Payment of estate taxes, if applicable.
-
Final distribution of assets to heirs.
FREQUENTLY ASKED QUESTIONS
What happens if someone objects to the Will?
An objection to a Will, also known as a “Will
contest” is a fairly common occurrence during the
probate proceedings and can be incredibly costly to
litigate.
In order to contest a Will, one has to have legal
“standing” to raise objections. This usually occurs
when, for example children are to receive
disproportionate shares under the Will, or when
distribution schemes change from a prior Will to a later
Will. In addition to disputes over the tangible
distributions, Will contests can be a quarrel over the
person designated to serve as Executor.
Does probate administer all property of the
deceased?
Probate is primarily a process through which title is
transferred from the name of the deceased to the names
of the beneficiaries.
Certain types of assets are what is called
“non-probate assets” do not go through probate. These
include:
-
Property in which you own title as “joint
tenants with right of survivorship”. Such property
passes to the co-owners by operation of law and do
not go through probate.
-
Retirement accounts such as IRA and 401(k)
accounts where there are designated beneficiaries.
-
Life insurance policies.
-
Bank accounts with “pay on death” (POD)
designations or “in trust for” designations.
-
Property owned by a living trust. Legal title
to such property passes to successor trustees
without having to go through probate.
Do I get paid for serving as an Executor?
Executors are reimbursed for all legitimate
out-of-pocket expenses incurred in the process of
management and distribution of the deceased estate. In
addition, you may be entitled to statutory fees, which
vary from location to location and on the size of the
probate estate. The Executor has to fulfill his or her
fiduciary duties on behalf of the estate with the
highest degree of integrity and can be held liable for
mismanagement of estate assets in his or her care. It
is advised that the Executor retain an attorney and an
accountant to advise and assist him with his or her
duties.
How much does probate cost? How long does it
take?
The cost and duration of probate can vary
substantially depending on a number of factors such as
the value and complexity of the estate, the existence of
a Will and the location of real property owned by the
estate. Will contests or disputes with alleged
creditors over the debts of the estate can also add
significant cost and delay.
Common expenses of an
estate include executors fees, attorneys fees,
accounting fees, court fees, appraisal costs, and surety
bonds. These typically add up to 2% to 7% of the total
estate value. Most estates are settled though probate in
about 9 to 18 months, assuming there is no litigation
involved.
Tampa
Probate & Estate Administration Attorney - Lawyer providing professional
Probate & Estate Administration Legal Services in
Palm Harbor, Clearwater, Tampa,
St. Petersburg and throughout the Southwest
Florida area.
