What is a Will?
A will is document that states an individuals wishes for the handling of their estate after their death. Every State has their own requirements, please make sure to consult with an attorney in your jurisdiction to discuss the preparation of a Last Will and Testament.
What happens if a decedent did not have a Last Will and Testament?
If a decedent did not have a Last Will and Testament at the time of death, the decedents assets, if any, will go via intestate Succession Law or otherwise called intestate. Having an estate go intestate means that it will go via a default mechanism to distribute property to certain people called heirs. The intestacy rules will designate certain people as heirs and specify how the shares are to be distributed.
Is a probate necessary if the Decedent has a Last Will and Testament?
The correct response is, it depends. If a decedent died without any assets to their name then it is very possible that a probate is not necessary. However, if the decedent died with assets in their name then it is possible that a probate is necessary. Having a Will with a nominated Personal Representative/Executor does not mean that a probate is not necessary, many factors come in to play, such as the labeling of the assets.
How long does the Probate process take?
The probate process varies depending on the case itself. If the case is a Summary Administration it is a much shorter process and may be completed in a few months as opposed to a Formal Administration. If the case is a Formal Administration it is a longer matter and can take anywhere from 6 -12 months if there are no disagreements with all parties involved. If disputes arise the process can take several years for any probate to be resolved and completed.
What Happens If one of the Heirs or Beneficiaries to an Estate cannot be found or are missing?
There are a number of times that an heir or beneficiary cannot be found. In those instances where an heir or beneficiary is missing or cannot be found, the legal system in your jurisdiction may permit the Personal Representative or Executor to deposit the share meant for the missing heir/beneficiary into the court registry.
Is there a time limit to start a probate in Florida?
There is no deadline to start a probate in Florida. There have been instances that estates have been started decades later. However, it is preferable that the families do not take too long in order to start the process because complications can arise when initial heirs and children pass away from the original decedent.
What is a Personal Representative?
A personal representative is an individual appointed by a court to be in charge of the administration of an estate. If the decedent had a Will they are also called executors. It is highly advised to speak to a probate attorney to guide you through the process and provide a better understanding of the duties of the personal representative.
Do I need to go through probate if the decedent had a will?
The simple answer is yes. Having a will does not avoid probate, it is an instrument that helps guide the probate court in the distribution of the decedent’s assets.
If there is a will that gives everything to one person, can that person take the will and transfer the assets without going through the probate process?
No. Having a will does not avoid probate, it is an instrument that helps guide the probate court in the distribution of the decedent’s assets.
Is a probate administration always required?
Not always. For many decedents there is no requirement to open a probate. If a decedent did not own assets in his/her name at the time of death a probate may not be required.
What are probate assets?
Assets subject to probate are those assets that were solely owned by the decedent at the time of death.