Updated: May 3
Ah, probate … for some this is the great bogeyman of estate settlement. However, at Starr Law, ‘probate’ isn’t even a word we regularly use. Not because it’s too scary to utter, but because proper estate planning renders it merely incidental to all that we do for our clients.
Probate is perhaps best understood as a section of a courthouse reserved for administration of filed documents that will enable legal transfer of property from a deceased person to heirs. While many people are put off by the probate process, it is really an agent for ensuring Wills are faithfully and lawfully executed. And in situations where there is no Will, probate represents a diligent effort to see those estate assets are dispensed with some semblance of order and fairness.
Of course, we’d never claim that probate is a rose with no thorns. There are costs involved; the court charges a filing fee for probate-related papers, and attorneys charge for their services in administering probate cases. The probate process also takes time—though not ‘forever’ as you may have heard. In Florida, probate usually takes about four months.
One of the biggest frustrations arising from probate is that actions that sound like they should be simple, can turn out to be rather drawn-out, complicated affairs. Part of this is because institutions frequently involved in estate settlement may not provide the most accurate or clear instruction. (There is no service desk for probate ‘customers.’) Founts of misinformation may include banks, insurance companies … or even probate court staff. For example, in order to manage the decedent’s bank account, a bank official might say, “We will need a ‘letter of administration’.” At that point, Will’s executor may head off to the probate office to get his ‘letter,’ only to find this a document that must be reviewed and signed by a probate court judge. Generally, only experienced probate law attorney can be counted upon to provide the legal direction families need in completing with this process.
So, apart from filing and signing a few documents why does probate take so long? The main reason is to give creditors to the decedent a chance to present a claim against the estate. However, creditors do not necessarily get paid ‘in full’ after someone dies. Probate can, in fact, offer an excellent way to manage, minimize and sometimes completely extinguish creditor claims. And the process itself can be a powerful shield against aggressive creditors who may not understand or respect a family’s rights. In essence, the probate court tells these entities, “Leave the family alone. We’ll get to you.”
Still, with a little forethought and minimal effort, there are ways to prevent some assets from going through probate. Consider, for example, the “payable on death” (POD) provision that banks offer on various accounts. Naming a beneficiary for your savings account or certificate of deposit could save those funds from having to go through probate. Furthermore, a POD account can’t be used to shield assets from the estate’s creditors. All of these considerations only serve to illustrate the value of a probate law attorney in assisting you with estate planning.
The bottom line is that estate planning is the best way to maximize the benefits of probate while also minimizing the downsides. Once you’ve made the responsible decision to set your affairs in order, realize that experienced firms like Starr Law Offices are here to provide the much-needed legal assistance you will need … and that your heirs will appreciate.