Do you need an attorney for probate? It is very likely that an attorney is needed for probate in most circumstances. There are some limited circumstances where an attorney may not be necessary for probate. That being said, it is more likely than not that an attorney is necessary for probate. There are many factors to consider when dealing with probate. Whether you are a personal representative or beneficiary of a will may determine how you need the help of a probate attorney. Furthermore, if a person passes away with or without a will can have a major effect on probate.
If you die intestate, it means that you passed away without a will. This means that the State of Florida will look to the Florida Statutes to decide how your remaining assets are to be divided among any surviving heirs. Chapter 732 of the Florida Statutes describes intestate succession, or how the assets of the decedent (person who passed away) will be divided. There are very specific portions of the statute. For instance, there is a section detailing the spouse’s share of an intestate estate. According to Florida Statute 732.102:
Spouse’s share of intestate estate.—The intestate share of the surviving spouse is:
(1) If there is no surviving descendant of the decedent, the entire intestate estate.
(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.” (2018).
If you have died intestate, or passed away without a will, then the courts will have to follow the Florida Statutes to determine who receives any of your remaining property. As you can see above, that is an excerpt from the Florida Statutes regarding what your spouse will receive if you pass away without a will. Do you need an attorney for probate? If you are a surviving heir of a person who is deceased, then you may wish to consult with a probate attorney. What if a person passes away with a will?
Dying With a Will
If you pass with a will in place, then a probate attorney may still be necessary. As a personal representative, you will have many steps to follow during formal administration of an estate. Do you need an attorney for probate? Let’s take a look at some responsibilities of a personal representative. Florida Statute 733.212(1)-(2) states:
Notice of administration; filing of objections.—
(1) The personal representative shall promptly serve a copy of the notice of administration on the following persons who are known to the personal representative:
(a) The decedent’s surviving spouse;
(c) The trustee of any trust described in s. 733.707(3) and each qualified beneficiary of the trust as defined in s. 736.0103, if each trustee is also a personal representative of the estate; and
(d) Persons who may be entitled to exempt property
in the manner provided for service of formal notice, unless served under s. 733.2123. The personal representative may similarly serve a copy of the notice on any devisees under a known prior will or heirs or others who claim or may claim an interest in the estate.
(2) The notice shall state:
(a) The name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, whether the estate is testate or intestate, and, if testate, the date of the will and any codicils.
(b) The name and address of the personal representative and the name and address of the personal representative’s attorney, and that the fiduciary lawyer-client privilege in s. 90.5021 applies with respect to the personal representative and any attorney employed by the personal representative.
(c) That any interested person on whom a copy of the notice of administration is served must file on or before the date that is 3 months after the date of service of a copy of the notice of administration on that person any objection that challenges the validity of the will, the venue, or the jurisdiction of the court. The 3-month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by subsection (3), all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration.
(d) That persons who may be entitled to exempt property under s. 732.402 will be deemed to have waived their rights to claim that property as exempt property unless a petition for determination of exempt property is filed by such persons or on their behalf on or before the later of the date that is 4 months after the date of service of a copy of the notice of administration on such persons or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property.
(e) That an election to take an elective share must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or a guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death.” (2018).
This is a mere portion of the statute that mentions some of what is required of a personal representative. Needless to say, it does appear daunting, especially to a non-attorney. Do you need an attorney for probate? A probate attorney could help you if you are a personal representative. As we can see above, there is a lot of rules to follow and laws to obey if you are a personal representative. You want to make sure that you are adhering to all that is legally required of a personal representative. On the other hand, you may need a probate attorney even if you are not a personal representative. Perhaps you are the beneficiary of a will, and you need legal guidance.
Do you need an Attorney for Probate? Contact us at Bret Jones, P.A.
Do you need an attorney for probate? If you are unsure as to whether or not you need an attorney for probate, then you may want to speak with us at Bret Jones, P.A. about your legal concerns. Whether or not you are a personal representative or a beneficiary of a will, you may have some legal questions. You first consultation with us is for free. Do you need an attorney for probate? Why not meet with us to determine whether you do. Contact us at Bret Jones, P.A.