You may have heard the term probate. This is often interchangeably used with the term probate administration. Often times probate law touches nearly everyone’s life in one way or another. What is probate? Probate, or probate administration, is the distributing of a person’s assets once they have passed on. There are additional factors that come into play as well. For instance, in addition to distributing property to beneficiaries, the deceased person’s debts must be paid. Probate administration also addresses any general winding up of the affairs of the deceased. What is probate? We’ll look into some of the people involved in probate, as well as some probate basics to look further into what is probate.
Probate Basics
Persons Involved in Probate
At the bare minimum, there are usually a couple of people involved in probate administration.
This is true whether or not the estate is large or small. At the onset, we have a decedent. A decedent is the legal term used to describe the person who has passed away. The decedent’s will is being executed during probate administration. Next, we have the beneficiaries. Beneficiaries are sometimes referred to as heirs. Beneficiaries are those that are named in a will. If there isn’t a will, and a decedent has passed away intestate, then the beneficiaries will be determined based on the Florida Statutes. On a side note, it is important to mention that certain family members are protected against absolute disinheritance by Florida law.
During probate administration, a judge presides over the execution of the estate. Sometimes issues may arise. A judge may have to preside over whether there is a valid will. In addition, a judge may have to preside over whether or not a personal representative is qualified to act in their appointed role. This leads us to the personal representative.
There is also the personal representative. Personal representatives are sometimes called executors. Personal representatives are required to file probate once the decedent has passed away. Interestingly, a personal representative may be an actual person, a trust, or even a bank.
A personal representative has a duty to keep, manage, and protect the decedent’s assets from the time of death until all the affairs of the decedent’s estate are settled. This is just one of the multiple duties that is required of the personal representative.
Lastly, it is likely that there will be creditors of the decedent present during probate. This is because creditors will be present to collect any outstanding debts that may have been owed by the decedent prior to their death. The IRS will likely also have a representative present. This is ensure that taxes owed by the decedent or the decedent’s estate are paid. For example, income taxes may be owned by the decedent to the federal government.
What is probate? We can see that there are designated persons/roles that will always be a part of probate. That being said, depending on particular circumstances of each probate administration, persons involved in probate may vary from time to time.
When Does Probate Begin and What is the Process?
Probate begins when a person has passed away. Once the decedent has passed, the personal representative will file probate. Based on where the decedent lived when they passed will decide where the personal representative will file probate. One of the first things to occur is generally routine: the decedent’s death must be proven. This is usually addressed by recording the death certificate of the deceased person. In addition, there is a filing fee with the clerk of court. All paperwork that is filed with the clerk will be recorded and kept on file.
The deceased’s, or decedent’s, assets must be distributed. As a result, the decedent’s personal assets must first be collected and identified. Yet there is more than just the reading of the will in order to distribute the assets of the deceased. As we stated above, the debts of the decedent must be satisfied as well. For example, anything that the decedent may have owed during their lifetime, such as a loan, must be taken care of. The debt must be paid. It won’t just disappear. That being said, the cost of probate will be paid first, followed by any debts. Following the payment and satisfaction of any costs associated with probate, in addition to any outstanding debts of the decedent, the decedent’s beneficiaries will get any funds that are leftover.
Assets that may be passed onto beneficiaries may include personal property. This personal property could be jewelry or paintings. Real property can also be passed on in a will. An example of real property could be a house, in addition to the land on which the house is located. There is also intangible property, such as stocks that may be distributed as well.
What is probate? As we can see, probate is very extensive. In the Florida statutes and relevant case law, nearly every possible issue or situation has been considered. Throughout history, what happens after someone passes has been the source of much unfortunate contention. As a result, much has been drafted in the statutes and argued in court regarding probate. When you reach out to a probate attorney for help, there is a wealth of knowledge and information available for your assistance.
Types of Probate Administration
Now that we’ve discussed some probate basics, let’s move onto the two common types of probate administration: formal and summary. The most common type of probate administration is formal administration. Formal administration is what you will often be hearing or reading about when probate is mentioned. On the other hand is summary administration. Summary administration may be used if a decedent passed away more than two years prior and they have no administration. Summary administration may also be used in some other circumstances.
Lastly, we have a third type of probate: disposition of personal property without administration. Disposition of personal property without administration occurs in limited circumstances. There are prongs that need to established. In order to best discuss these types of probate administration in more detail, it is best to speak with a probate attorney.
What is Probate? Reach Out to Bret Jones, P.A.
What is probate? We hope that we’ve been able to give you a basic understanding of probate. Looking at some of the key players in probate, as well as when probate begins and other probate basics, we get a general sense of probate. That being said, probate law can become complex quickly. That’s why there are probate attorneys. A probate attorney can help you with many issues involving probate law. At Bret Jones, P.A., we pride ourselves on providing excellent legal service, and making things as enjoyable and as easy as possible for our clients.
If you have a question about probate, please reach out to us at Bret Jones, P.A. We would be more than happy to speak with you about any probate questions that you may have. Your first consultation with us at Bret Jones, P.A. is for free, an even better reason to reach out to see if you need the assistance of a probate attorney. Don’t hesitate to speak with us about any probate questions you may have. We hope to heard from you if you do. Contact us today.
