“WILL” YOU OR WON’T YOU AVOID PROBATE?

Most people have a vague awareness of the admonition “you want to avoid probate if you can”. But the statement may be worth examining in order to provide you with a deeper understanding of the reasoning behind the adage; is probate really that bad? And if it is that bad, will your estate be ‘Probate-Proof’ if you have an existing will, and/or a trust? Let’s dig in. 

When a person dies with property titled solely in his or her name, ownership of the property has to be transferred, for the obvious reason that a person who is not alive cannot have ownership, possession, custody or control of property.  Keep in mind that property can consist of real estate (also known as “real property”), personal property (this can be cars, money, jewelry, collectibles, stocks etc), and even digital property (think of domains, bitcoin, copyrights, etc.).

A common misconception is that family members can simply transfer possession and title of property once their loved one has passed. This misconception is often stopped in its tracks when  the surviving family members go to the bank and try to close out their loved one’s account; that is simply not going to happen (assuming that they have not been named as co-signors or account beneficiaries). The bank will turn them away empty handed and freeze the account. Though family members may succeed in effectuating a post-death property transfer, in the absence of legal authority to make such transfers, these are not considered legal transfers and are thus subject to challenge. The only way to legally transfer a dead person’s property is through court order; that is where probate court steps in. 

To commence a probate action, you must first have possession of the death certificate; nothing happens before a death certificate is issued.  Once issued, a series of legal documents must be filed, and this is the point at which the decedent’s will comes into play. If the decedent had a will, you want to hope that it was (a) executed properly in accordance with Florida State law, (b) has a Self-Proving Affidavit which will preclude the necessity to find the witnesses who signed it, and (c) it articulates both the decedent’s desired Personal Representative and his/her preferred beneficiaries. If the decedent had no will, or the will is missing, then he or she is considered to have died intestate, and an heir search will be needed. If the other information is missing, the court will need to assess and designate appropriate distribution (caveat, this summary is not meant to be comprehensive of all scenarios, rather it is a general overview of how the process works).

Let’s not forget the decedent’s creditors! Macy’s, Visa, Nissan or even Medicaid may all have open claims that need to be addressed before family members can distribute the decedent’s property. The court will give creditors a notice period of several months to make a claim against the debt owed, and the decedent’s estate will have an opportunity to challenge those claims, or negotiate them down. 

What if the decedent had a trust directing distribution, is the estate safe from probate? Not necessarily. All property must have been properly titled to assure the “Probate-Proof” character of the estate, even if the decedent had the wisdom and foresight to create a trust. 

What if the decedent died without identifying beneficiaries, and with no immediate family? The court will direct that a full heir search conducted (there are vendors whose business is dedicated to this service, and they charge a hefty fee for the work), which can and typically does take agonizing months to complete. The court will ultimately decide 

And that last bit, my dear readers, is the crux of the issue; the time factor. Entering probate court can mean months, or even years of time-consuming hassle, typically associated with an undesirable resource expenditure, whether the fees associated with an attorney handling the probate, or the costs and time of the brave family member who is willing to handle it on their own and ‘figure it out’. The nuances of our court system are not for the faint of heart, particularly when one is not savvy about navigating the invariable obstacles associated with these cases. 

What is your takeaway about the probate process; “Will” you or won’t you risk it? For a relatively reasonable investment of time and money, you can opt to control the distribution of your property upon your passing, by simply creating a plan in advance, while you are well and in a space that you can take your time to consider options; ideally with a trusted legal guide and partner in the process.  Lebensohn Law is here to help you through the process, whether your goal is to avoid probate or whether you find yourself needing to pursue a probate action.