PROBATE & TRUST ADMINISTRATION

Probate Simplified: A Comprehensive Guide

As we say goodbye to a beloved person, a multitude of questions come to the forefront: How do we manage the affairs of our dear one? What encompasses their assets? Who are the designated beneficiaries? How can lingering debts be resolved? How can the process of asset distribution be streamlined? Tampa-based probate attorney Paul James Monsanto is here to provide answers to these inquiries and deliver indispensable support.

The resolution to most of these inquiries hinges on the form of asset ownership and liability. However, this may appear straightforward, yet the intricacies can be misleading. Often, well-intentioned individuals believe they’re taking appropriate actions, only to inadvertently complicate the estate settlement process. Many embark on crafting a Last Will and Testament with the intent of easing their family’s situation and evading probate. Nonetheless, misunderstanding the workings of a will is common. The Law Office of Paul James Monsanto, P.A. specializes in guiding clients to bypass the expenses and time constraints associated with probate through effective estate planning.

Effortless Estate Management The Law Office of Paul James Monsanto, P.A. recommends a grantor trust as the optimal strategy for steering clear of probate. This trust is established prior to one’s passing. Ideally, all assets are titled under this trust or designated as beneficiaries before the decedent’s demise. Yet, even with a meticulously designed estate plan, the manner in which assets are titled remains pivotal to the plan’s efficacy. Some assets might not make it into the trust, rendering them subject to the probate procedure. Regularly reviewing the estate plan and connected assets every three to five years with an adept attorney is advised.

Understanding Probate

Probate, a process supervised by the court, is devised to address the decedent’s assets and debts. Furnishing as precise information as possible is essential for attorneys to dispense optimal guidance on estate administration. Details about the nature and value of the decedent’s assets, potential creditors, beneficiaries’ ages and relationships, the time elapsed since the decedent’s passing, and the existence of executed estate planning documents are crucial. Insights from financial institutions and public records can illuminate the manner in which assets are held. The more comprehensive the information provided, the more productive the consultation with the attorney.

Subsequent to gathering and analyzing this information, the attorney can ascertain the necessity of probate administration and, if required, determine the most suitable probate avenue.

The Role of a Will

A common misconception is that possessing a valid Last Will and Testament negates the need for probate. However, the will essentially serves as a guide through the probate journey. It solely pertains to assets held solely in the decedent’s name and is not bound by contractual obligations to beneficiaries.

Take a bank account, for instance. If the decedent designated one or more beneficiaries for the account, the will doesn’t influence it; the account is directly transferred to the beneficiary. In the absence of a designated beneficiary, the will comes into play. Through the will, one can disinherit heirs, allocate assets to charitable causes, and arrange for the care of pets.

Validating a Will

As per Florida law, the decedent’s original Last Will and Testament must be lodged with the Clerk of Court in the relevant county within ten days of the Personal Representative’s awareness of the passing. Should the original will prove elusive, a copy can be submitted, albeit lengthening the administration process. In Florida, the law presumes the decedent deliberately destroyed the original. Therefore, additional steps might be necessary to verify the authenticity of the presented will, proving it’s not merely misplaced or accidentally discarded.

Several regulations govern a will’s validity. Occasionally, even a valid will crafted and executed in another state might not hold under Florida law, necessitating additional filings. It’s recommended to promptly have the attorney assess the original will for compliance with Florida regulations.

Navigating the Absence of a Will If the decedent passes away without a will or with an invalidated one, the assets are distributed based on the state’s statutes, known as dying “intestate.” In Florida, this generally implies:

• If there are children but no spouse, the children inherit everything.
• If there is a spouse but no descendants, the spouse inherits all.
• If there is a spouse and descendants from the same marriage, and the spouse has no other descendants, the spouse inherits everything.
• If there is a spouse, descendants from the decedent, and the spouse, and the spouse has descendants from a prior relationship, the spouse inherits half of the intestate property, while the decedent’s descendants inherit the other half.
• If there is a spouse, descendants from the decedent, and someone other than the spouse, the spouse inherits half of the intestate property, and the decedent’s descendants inherit the other half.
• If there are parents but no spouse, descendants, or siblings, the parents inherit all.
• If there are siblings but no spouse, descendants, parents, or children, the siblings inherit all.

It’s important to note that Florida’s intestacy laws generally exclude stepchildren and foster children from inheritance unless legally adopted by the decedent. Additional regulations and exceptions exist based on the relationship of heirs to the decedent.

Special provisions apply to spouses concerning the distribution of all property, not just probate assets, especially in relation to homestead property. Additional steps are necessary for the welfare of minor beneficiaries.

The consequences of dying without a valid will can be dire, potentially leading to an unintended distribution of assets. This is particularly pertinent in cases of second marriages, children from previous unions, a spouse or children with special needs, or beneficiaries reliant on government aid. For instance, if a spouse is receiving Medicaid and inherits from the decedent, it might jeopardize their Medicaid benefits.

SERVING THE ENTIRE STATE OF FLORIDA’S PROBATE NEEDS

The Law of Office of Paul J. Monsanto can handle probate case anywhere in Florida. Our office is located close to Pasco and Hillsborough Counties, but with our easy remote process, we can provide probate administration services in any of Florida’s 67 Counties.

Here are the steps:

Step 1: Schedule a consultation, in-person or on-line, with your probate attorney to discuss the details of your case.

Step 2: We will email you a shipping label to mail us the original Last Will and Testament, if any.

Step 3: Using the INTAKE FORM GENERAL PROBATE on the FORMS page of this website, we will prepare the documents to open and ultimately close the probate case. You will review and electronically sign your documents. The only documents that need to be notarized are an Oath of the executor and a Fiduciary Bond, if required. We connect you with an online notary if it is not convenient for you to sign before a notary in-person.

Step 4: We will mail you a certified copy of Orders retitling assets.

Step 5: If required by law, we will publish notice to potential creditors and notify creditors that already know of. If retain us for this purpose, we will negotiate with creditors on your behalf to lower or eliminate debts.

It’s that easy. Plus, our probate administration services are fast and affordable. Most probates can be resolved between 1-4 months—if you’re working with an experienced attorney. Because we charge based on the work involved and not a percentage or by estate size, our probate administration fees are the lowest among probate attorneys.

WHAT’S THE DIFFERENCE BETWEEN FORMAL AND SUMMARY PROBATE ADMINISTRATION?

In Florida, as in many other states, there are two primary types of probate administration: summary administration and formal administration. These two processes differ in terms of their complexity, the assets they can handle, and the situations in which they are typically used. Here’s an overview of the key differences between summary and formal probate administration in Florida:

SUMMARY ADMINISTRATION:

Eligibility: Summary administration is a simplified probate process available for smaller estates or estates with specific characteristics. To qualify for summary administration in Florida, the decedent’s estate must meet one of the following criteria: the value of the estate, less exempt property and the value of property passing outside of probate, is less than or equal to $75,000, OR the decedent passed away more than two years ago, regardless of the estate’s value.

Procedure: Summary administration generally involves fewer court proceedings and is less time-consuming compared to formal administration. It can often be completed more quickly, making it a cost-effective option.

Assets: Summary administration is suitable for estates with relatively simple asset distributions, and it cannot be used for complex or disputed matters. It is typically used for smaller estates or when the decedent’s passing occurred more than two years ago.

Notice: In summary administration, notice to creditors is published, and the court may order a hearing if needed, but the process generally involves fewer formalities.

FORMAL ADMINISTRATION:

Eligibility: Formal administration is the traditional and more comprehensive probate process in Florida. It is used for estates that do not qualify for summary administration or when a more formal and supervised process is necessary.

Procedure: Formal administration involves more court oversight, documentation, and procedural steps compared to summary administration. It typically includes the appointment of a personal representative (executor), notice to creditors, and more extensive court involvement.

Assets: Formal administration is suitable for handling complex estates, estates with significant assets, and situations where disputes or creditor claims are likely to arise. It allows for a more thorough resolution of issues.

Notice: Formal administration requires notice to known and reasonably ascertainable creditors, and it provides a structured process for handling creditor claims. The court has a greater role in overseeing the proceedings.

In conclusion, the choice between summary administration and formal administration in Florida depends on the specific circumstances of the decedent’s estate. Summary administration is a quicker and simpler option for smaller estates, while formal administration is the more comprehensive process used for larger estates or when disputes and complexities are involved. Consulting with an attorney experienced in Florida probate law is essential to determine which type of administration is appropriate for a particular estate.