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May 4, 2020

Commonly asked questions on Probate Litigation

Commonly asked questions on Probate Litigation

What Are Probate And Administrative Litigation, How Can It Help You

Probate Litigation is a process that deals with the estate of a loved one who has passed away. It is not the easiest thing in the world. This process can seem very tiring and overwhelming. So, in this blog, we will help you get a few of your questions answered. When residents or property owners pass away, their death sets into motion a legal process known as probate. Through probate, a deceased person’s assets are distributed to the heirs of his or her estate under court supervision. Probate also involves paying a decedent’s outstanding taxes and debts.

Types Of Probate

First off, its best to know everything about the situation at hand. There are multiple types of probate. Depending on certain circumstances, the Probate process can be simple and easy or can be exceptionally long.

The probate process can be differentiated in the following ways:

Probate vs. non-probate assets: Only those assets that were solely owned by the decedent at the time of death must go through Florida probate administration. Any assets that are jointly owned or have a designated beneficiary are not subject to probate administration.

Summary vs. formal administration: When an estate is worth $75,000 or less, or the decedent has been dead for more than 2 years, the estate will qualify for abbreviated probate known as summary administration. The estates that don’t qualify for summary administration undergo regular probate or formal administration.

Domiciliary probate vs. ancillary probate: Domiciliary probate is the probate of assets that are in Florida and owned by a decedent who was a Florida resident. Ancillary probate is probate of assets that are in Florida but owned by a decedent who was not a Florida resident.

A simple estate with a clear, uncontested can go through the probate process in just a matter of a few weeks. But there are multiple issues that can complicate probates. These include the lack of a will, a challenge to the will’s validity or meaning, creditor claims, or a surviving spouse’s rights.

What Are The Rights Of Surviving Spouses?

Surviving spouses are normally entitled to a share of their deceased spouse’s estate. Even if he or she is not explicitly provided for in the will.

A spouse may be disinherited if the will was made prior to the couple marrying. However, as long as the will was made while the couple was married, the surviving spouse may receive:

  • An elective share (usually 30%) of the decedent’s estate
  • A life interest in the couple’s primary residence
  • A family allowance up to $18,000
  • Surviving spouses who do not receive their fair Florida Elective Share should consult a probate lawyer.

How Does Probate Work?

Probate begins when the person named in the will as estate administrator presents the will to the probate court. If there is no will, the court appoints someone as an estate administrator, typically the decedent’s spouse or adult child.

Once the will is admitted to probate, the personal representative takes an inventory of estate assets. These include property, stocks and bonds, and business interests. Then, they place them in an estate account. The representative also notifies creditors of the estate and beneficiaries who may inherit estate assets.

Legitimate creditor claims and other estate bills, such as funeral expenses and taxes, are paid from the estate. If the representative thinks certain creditor claims are not legitimate, those claims can be disputed.

After the estate’s debt obligations are satisfied, remaining assets are distributed to beneficiaries according to the decedent’s will. What if there is no will? Florida law determines how assets are passed on.

Does Having A Will Avoid Probate?

In a Will, the deceased person selects a person known as the Executor or Personal Representative to handle their matters after they die. A Will also can include specific devices (the left of an item to someone) of miscellaneous assets, make special requests for the handling of minors, animals, and/or those with special needs.

How Long Does The Probate Process Last?

The length of time a ‘Probate’ will take depends on the number of assets and debts in the Estate. Also, the time can vary based on whether there is a Will, whether the beneficiaries can be easily located and whether there will be any dispute as to the validity of the Will or disagreements about the distributions. There are three types of administrations (Disposition without Administration, Summary Administration, and Full Administration). The type of administration depends on the size/value of the Estate, whether the deceased person had any debts and how long it has been since the person passed away.

What are the Rights of Surviving Spouses?

Surviving spouses in Florida are typically entitled to a share of their deceased spouse’s estate—even if he or she is not explicitly provided for in the will. A spouse may be disinherited if the will was made prior to the couple marrying, but as long as the will was made while the couple was married, the surviving spouse may receive:

  • An elective share (usually 30%) of the decedent’s estate
  • A life interest in the couple’s primary residence
  • A family allowance up to $18,000
  • Surviving spouses who do not receive their fair Florida Elective Share should consult a probate lawyer.

Types of Probate

The probate process can be differentiated in the following ways:

Probate vs. non-probate assets: Only those assets that were solely owned by the decedent at the time of death must go through Florida probate administration. Any assets that are jointly owned or have a designated beneficiary are not subject to probate administration.

Summary vs. formal administration: When an estate is worth $75,000 or less, or the decedent has been dead for more than 2 years, the Florida estate qualifies for abbreviated probate known as summary administration. Florida estates that do not qualify for summary administration undergo regular probate or formal administration.

Domiciliary probate vs. ancillary probate: Domiciliary probate is the probate of assets that are in Florida and owned by a decedent who was a Florida resident. Ancillary probate is the probate of assets that are in Florida but owned by a decedent who was not a Florida resident.