What is Probate?
Probate means different things depending on context. In the narrowest sense, it means to prove that the will of a decedent is the latest one that was executed properly by a competent person without undue influence, etc. Sometimes it means the court process of administering the assets and debts of the decedent, paying taxes, and distributing the remaining assets to the beneficiaries. Often it means the entire process, including administering assets that never become part of the court process, such as jointly held assets with the right of survivorship and assets that go by beneficiary designation.
How Do Probate Laws Work?
In general, state probate laws govern the property distribution process that follows the death of an individual. These laws guarantee that any possessions left by the decedent are appropriately distributed to their descendants, either according to the documents left by the decedent or to the relevant laws. Probate laws also can provide a mechanism for creditors to receive payment for debts that the decedent owed at the time of their death.
Understanding the Probate Process
The first thing we do is meet with the designated personal representative to understand the family dynamics, the assets, debts, businesses, and estate planning documents.
It is important to remember that in many situations, most of the assets are transferred by title or by beneficiary designation, and not by will. If there are assets subject to probate, then a probate proceeding will need to be started. We need to file the decedent’s Last Will, if any, and if none, we are under the law of intestate succession. In that case, it is up to the court to determine the order or hierarchy of the individuals who will inherit the deceased person’s property according to state law.
Probate refers to the legal process that generally begins with a petition to open the estate of a deceased person by presenting their will to the court. A will is probated in the country or state where the person passed away. When there is a Will, this document usually appoints a person to serve as personal representative who is usually the surviving spouse or an adult child. A personal representative is charged with the responsibility of gathering assets, determining creditors and notifying them of the death and requiring them to file a Claim.
Depending upon other circumstances, there may be contracts to honor, tax returns to be prepared, litigation to commence or continue, etc. For example, in larger estates, we will need to prepare the Federal Estate Tax Return. Although the Federal Estate Tax exemption is currently approximately $12,000,000, it is scheduled to be cut in half on January 1, 2026.
Even when the decedent has significantly less than $12,000,000, it often makes sense to file an Estate Tax Return so that the unused exemption of the decedent can be added to the surviving spouse’s exemption when the second death occurs. If we believe there is a reasonable chance that the survivor could have $6,000,000 or more at the survivor’s death, this should be done.
How a Probate Lawyer Can Help
Dealing with the loss of a loved one simultaneously with trying to handle a legal matter can make the probate process much more challenging to handle. You may also find the probate process complex, lengthy, costly, and discouraging. A probate lawyer is familiar with the ins and outs of the probate system and how to administer an estate most efficiently. Hiring an experienced Hollywood probate lawyer to assist you could make a significant difference in your case.
Although probate procedures appear to be straightforward, they are more complicated than they might initially seem. For this reason, many states, including the state of Florida, insist that representatives of estates employ probate lawyers.
A qualified probate lawyer is always there to protect your interests, no matter how easy or complicated the probate case is. The lawyer will use their best efforts to assist you and soothe the legal burdens that often accompany the death of a loved one. Having a probate lawyer on your side can ensure that the probate procedures run more smoothly, saving you time. Legal counsel’s intervention can also minimize the amount of stress that you may be feeling during such a difficult time of loss in your life.
You also may be facing legal matters related to the death of a loved one, or you may wish to contest the will. In this case, the services of a skilled probate attorney also may be invaluable to you.
Problems that Can Arise During the Probate Process
Families and family relationships, by their nature, can be very complicated. In turn, these family relationships can lead to legal problems that impact the probate process. For example, in some cases, a surviving second spouse diverts funds to their children rather than to the children of the deceased. In other cases, a significant other may have substantially interfered with the parent-child relationship.
Furthermore, a caregiver or family member may care for an ailing and independent individual, only to exploit them. Your loved one may even become so dependent on that person that they change their will to leave everything to that person. These situations can lead to immense legal problems that only a probate lawyer can help you unravel. Other common problems that can arise during the probate process may include:
- Creditor claims and disputes
- Undue influence and testamentary capacity issues relating to wills and trusts
- Elective share – In general, a surviving spouse is entitled to a minimum o 30 percent of the decedent’s estate, as adjusted.
- Tax issues
- Homestead issues
- Title issues
- Disputes among beneficiaries
- Tortious interference with an expectancy
Prepare Your Estate Plan and Ease the Burden on Your Family
A proper estate plan can pass your possessions along to your intended successors according to the terms of your will. A knowledgeable Fort Lauderdale probate lawyer can greatly assist you in developing the estate plan that is best designed to meet your needs. We also can help protect your estate plan and your family members against legal complications during probate proceedings.
Call Kramer Green for the Probate Law Assistance that You Need
We are a full-service probate law firm that helps our clients create individualized estate plans designed to meet their needs and those of their families. We also assist you after you have lost a loved one and need an estate to go through the probate process. Together, we can work through the necessary legal proceedings and achieve a positive outcome.