What is Probate?
Probate is the name for the court supervised legal process created for settling a deceased person’s estate, whether or not the decedent had a Will.
This includes paying creditors or debts, and distributing the assets of the deceased to the appropriate beneficiaries.
It is a complicated procedure, involving costs for a probate attorney, personal representatives fees, court costs and possibly accountants and other experts.
The process must be followed explicitly, so that when a beneficiary inherits assets, they will be free from future claims, and the beneficiary will be able to sell the asset without surprise delays or liens.
Things are not always how they may first appear in a Probate matter. For example, a Will may provide that a residence is to be transferred to a particular individual. Florida, however, limits to whom homestead property can be devised. In other words, the Will may have a provision that is completely unlawful. Generally, only a knowledgeable attorney experienced in Probate matters will see these issues and guide the Personal Representative (Executor) through the process.
Its important to keep in mind that a person serving as Personal Representative has very specific fiduciary duties and can be liable for not properly administering a probate estate.
An attorney who is familiar with Homestead rights can use this knowledge to defeat claims of creditors, and sometimes the claims of other beneficiaries under the Will whose claims would appear to have priority.
Depending on the facts of a particular situation, one of a spouse’s rights in Homestead property, is to take a life estate in the property. This can lead to financial burdens for maintenance of the property, mortgage payments, real estate taxes, homeowner’s association dues and repair.
Florida law has recently changed to permit the spouse to take a 50% interest in the property as tenant in common, rather than take what may be a burdensome life estate interest. A sale of the property can then be compelled by the courts. There are strict time limits on making this election.
Florida also provides an for a spouse to “waive the Will” if the spouse is not satisfied with provisions made for him or her. The spouse can then claim “Elective Share Rights”, however, there are strict time limits on making an election.
We hope that the links to FAQ (Frequently Asked Questions) in the menu on the right side of this page, are helpful to you. You can learn more by calling West Palm Beach probate attorney Gregory C. Picken for a FREE consultation at 561-346-9779.