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February 2, 2021

Will Probate And Administration Process | Aubrey Law

How To Navigate The Will Probate and Administration Process

When someone you love passes away, do you know the right steps to take by law? At the time of passing, most people have assets or carry debt in some form. Personal assets and liabilities are someone’s “estate.” Every state has a set of laws stating what to do with an estate and how to honor the deceased’s estate plan. This is known as a will – or if a person lacks this plan, the probate process is also in place to help this case. This entire process of closing an estate is handled by each state’s probate court system. In order to better understand the process of will probate and administration, Aubrey Law details this process.

What Is Probate? Why Is It Necessary?

The Probate process is a court-supervised course of events that identify and handle the assets of the deceased (decedent). This can include paying the decedent’s debts and distributing the decedent’s assets to any beneficiaries. In most cases, the assets left by the deceased party are used toward expenses in relation to their death and remaining debt. Typically, the probate proceeding’s cost, funeral expenses, and then the decedent’s outstanding debts are covered in that order. Whatever assets remain are split amongst the decedent’s beneficiaries. Probate is necessary to fairly and properly handle the assets of the deceased. Protecting and ensuring no outstanding debts or problems befall the beneficiaries is of highest importance. If you still have specific questions about probate, read more on our blog here.

The Parties Of Will Probate And Administration

Many different people and entities have a part in the probate and administration process. To name a few parties:

  • Circuit court judge
  • Clerk of the circuit court (within the county of the decedent’s residence at the time of the decedent’s death)
  • Personal representative (executor or administrator)
  • Probate Attorney (provide legal advice and services to the personal representative throughout the probate process)
  • Internal Revenue Service (IRS)
  • Any parties filing claims in the probate proceeding (any debts incurred by the decedent, such as credit card issuers, health care providers, etc.)

The circuit court judge guides all parties through probate proceedings. The judge takes into account the decedent’s will (if they had one) and considers all additional evidence for all entities. This is to confirm beneficiaries’ identities or heirs as those who will receive the decedent’s probate estate and debtors claims.

How The Judge Handles The Process

In a Living Will, the decedent has a nominated person to serve as the personal representative. Thankfully, this information helps the judge decide and qualify the person or entity fit for the job. Most of the time, the nominated personal representative meets the statutory qualifications. The judge will then issue “Letters of Administration,” or “Letters,” of confirmation. These “Letters” confirm the personal representative’s authority to oversee the decedent’s probate estate. Along the process of estate handling, questions or disputes can arise while administering the estate. When this happens, the judge holds a hearing in order to resolve the matter or whatever factors are in question. Once the judgement is in place, the judge’s decision will be set with a written directive. This is known as an “Order.” All parties follow Orders without question, or face penalty of law.

What A Personal Representative Does

A personal representative is in charge of carrying out the decedent’s probate estate. The role of personal representative is a serious job of administering the probate estate and has a duty to:

  • Publish a “Notice to Creditors” in the local newspaper to notify potential claimants to file
  • Employ Lawyers and other professionals to assist in administering the estate (certified public accountants, appraisers, etc.)
  • Fairly distribute assets among beneficiaries
  • Find, collect, value, and safeguard probate assets
  • Serve a “Notice of Administration” regarding probate and required steps for those who object to the administration
  • Search for and locate “known or reasonably ascertainable” creditors and notify these creditors of the time by which their claims must be filed
  • Object to false claims, and defend suits for these claims
  • Pay rightful claims
  • File the tax returns and pay any outstanding taxes due
  • Cover expenses of probate administration
  • Close the probate estate

Who Is Personal Representative When There Is No Will

If the decedent did not have a Living Will, the surviving spouse has the first right. This person is still subject to approval and appointment by the judge to serve as the personal representative. When the decedent is unmarried or if the surviving spouse declines, another thing must happen. A majority vote amongst heirs selects a person or institution for the second right to become personal representative. Should heirs not agree amongst one another, the judge appoints a personal representative after a hearing held for that purpose.

An Attorney’s Role

Because many legal problems and questions come up, most advise all personal representatives to consult an attorney. A qualified attorney assists in the administration of the decedent’s probate estate to ensure all matters are addressed. Even in the easier probate estate administration, most issues that come up are new and complex for the public. To give peace of mind, attorneys advise the personal representative on all rights and duties under the law. They then represent them in probate estate proceedings to ensure no issues go unresolved. To serve you, Aubrey Law is an experienced Probate Administration attorney who’s experience and expertise helps you navigate the process with ease.

The Family Rights Involved in Probate Administration

Thankfully, the surviving spouse and certain children have rights. They can often receive probate assets from the decedent’s probate estate. This can be possible in the case that the decedent’s Will doesn’t leave them anything. Florida law seeks to protect these family members from poverty. In terms of property, the spouse has the right to claim an “elective share” from the decedent’s probate estate. The elective share is usually 30 percent of assets, including most non-probate assets. A spouse and/or the decedent’s children may also have the right to a family allowance before the final distribution of the estate. Sometimes the decedent marries or has children after the date of the last Will. These people can sometimes receive a share of the probate estate. These situations are delicate and you should consult an attorney. The Enforcement of these statutory rights require knowledge about the applicable laws.

Aubrey Law

Aubrey Law

Our lawyers have been helping clients in family, elder, and probate law since 1999. Struggling with probate issues, child custody or a recent divorce? If you are seeking legal advice contact the law office of Attorney Aubrey Harry Ducker Jr. Our offices handle all types of legal representation from family law to elder law. Call us today at (407) 647-7887 or send us a send us a message. Aubrey Harry Ducker Jr. Attorney at Law serves Altamonte Springs, Longwood, Maitland, Orlando, Oviedo, Winter Garden, Winter Park and Winter Springs and surrounding areas.