To Probate or Not to Probate, That is the Question

Nicole Quattrocchi |

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Families often ask us whether or not they should probate a loved one’s estate. While no one can tell a person what to do, the decision is often financial. When a loved one dies leaving assets that cannot be distributed because he/she either died without properly allocating assets via will, trust or real property records or he/she failed to update an estate plan or he/she did not account for any assets, the decision to probate is a personal decision.

If one has passed leaving real property or other assets, which exceed the value of $300, then probate is often financially worthwhile and generally necessary. Most people believe that a will alone can give him/her rights to a loved one’s real property. This is not always the case. Sometimes even if there is a will, probate will become necessary for any and all real property.

Assets below $300 in value may not be of value as the filing fee for a probate case is over $300. If a loved one left a bank account, for instance, with a value of less than $300 and the bank which holds the account is unwilling to accept paperwork other than through the probate court, it may not be worth the effort and expense of probate.

In Florida, there are three types of probate: summary, formal and ancillary. A summary administration is the quickest and generally the least cumbersome. The estate must have a value below $75,000. This value would not include a homestead property. So if a loved one passes away with a homestead property and an estate valued less than $75,000 in assets, it’s advisable to probate the estate and proceed with a summary administration. Many attorneys in this area will accept a flat rate fee for such service. Depending on your county, this is a proceeding that could be completed in a couple of months.

For estates that exceed $75,000, a formal administration is required. Depending on Estates which county the decedent lived in, the proceeding can take six months or even years. Formal administrations require numerous steps and often incur hourly rates for the attorneys who file them. Some large estates can be probated through a contingency fee. The percentage will depend on both the attorney hired and the guidelines for value from the state of Florida.

An ancillary administration refers to property that is located in Florida, but the decedent was a resident of another state. The same can be true of a Florida resident who holds real property in another state. If an ancillary administration is required, one would need to contact an attorney in the state where the property is located to determine the fees required and pleadings required. Each state is different. Florida requires the same pleadings as either summary or formal administration (depending on the value) with a few extra documents that are required only of an ancillary proceeding.

Probate is also a requirement to get a loved one’s medical records after an accident or incident of potential medical malpractice. A family member cannot make a claim for medical malpractice or the like on behalf of his/her loved one without first being named the personal representative of the estate of the loved one by a court of law. If one has a family member who is a victim of medical malpractice or another accident which causes his/her death, he/she may need to speak to both an attorney specializing in medical malpractice and/or personal injury law as well as speaking to another attorney who will file the probate matter to have the claimant named as the personal representative.

When a loved one passes away, it’s often difficult to think about assets and distribution, particularly if the death is unexpected, surprising or sudden. In order to ensure that probate will not be required, it is best to meet with an attorney to discuss your estate plan. It may not be pleasant to think about death, but it is the way to ensure that one’s wishes are carried out properly and one’s family is spared the expense and burden of probate.

If a loved one has passed away and you’re not sure what you will need to do, please contact the Quattro Firm to help you decide whether or not to probate your loved one’s estate.