PROBATE AND PROBATE LITIGATION

 I am deeply sorry for the loss of your loved one.  


Probate is required to move assets from the deceased person to the beneficiaries by law, under a Last Will and Testament or Trust.   


There are two types of probate proceedings:  summary or formal administration.  Summary administration is available if there are no creditors and the assets do not exceed $75,000. Formal is required where creditors exist and the assets exceed $75,000.  Formal administration requires attorney representation.    


What is probate?


Probate is the process of administering the assets and liabilities of the estate of someone who has died.  The probate proceeding will only operate on the assets that are owned by the person who has died in his or her individual name.  Other assets will pass by operation of law or contract are non-probate assets and sometimes include life insurance policies and property owned as joint tenants with rights of survivorship.  In Florida, an attorney must represent the person who administers the estate; that person is called the personal representative.  By statute, a Florida lawyer may charge 3% of the assets of the estate as legal fees.  However, I offer flat rate fees for dispositions without administration and summary administration, and I will cap my fees at the 3% of estate assets for formal proceedings without litigation and no requirement of extraordinary work.  The personal representative basically has three roles to fulfill.  First, to marshall the assets of the estate, second, to pay any valid debts of the estate and finally, to distribute the estate to the beneficiaries.  



 My loved one has died, what do I do next?   


First, I am sorry for the loss of your loved one.  The list that follows can guide you through the next steps while you deal with the loss of a loved one:  


1.    Make funeral arrangements.  First, determine whether there was a prepaid funeral expenses policy in effect.  If the deceased served in the military, contact VA to determine eligibility for benefits at 800-827-1000 orwww.cem.va.gov.  As a part of the funeral arrangements, I recommend that you order 2 death certificates with cause of death and 8 death certificates without cause of death.  Typically, you will need to provide a death certificate to each party who requests it in order to distribute those assets. 


2.    Locate Original Estate Documents.  In Florida, you must deposit the will and any other relevant documents within ten days after being notified of the death.  I can assist you with properly depositing the will.   


3.    Contact Key People.  First, contact the personal representative, tax preparer and/or financial adviser, especially if IRAs are involved to determine a course of action.  You need to consider whether to contact an employer, social security and veteran's office to cease benefits, or other source of distribution since those payments that are made post-death may need to be returned.   


4.    Gather Important Documents.  The attorney handling your estate must have all of the estate documents, all paperwork that details the assets of the estate and all paperwork that details the creditors of the estate.   


5.    Avoid Making Big Financial Decisions.  If you have lost your spouse, avoid making any major financial decisions, such as selling a home or liquidating a financial portfolio.  Make a list of all debts that are owed and gather the documentation, but do not pay any bills other than those that your attorney advises that you may pay.  All other debts may be disputed and should remain unpaid until verified.  Consider filing a social security claim form if the deceased was 60 years of age or older.  Consider a spousal roll over for a 401(k) or IRA.   


6.    Insurance.  Inform the life insurance company of the death and request the necessary paperwork to claim the life insurance proceeds.  If you had health insurance benefits through an employer find out if you can retain those benefits.  Confirm coverage for last medical expenses.  Consider cancelling any policies, services or subscriptions that may no longer be necessary.   


7.    Update Your Own Estate Planning Documents and Accounts.  If you are affected by the death of your loved one, consider updating your own estate planning documents and change the beneficiaries designated on your life insurance policy, accounts and otherwise to reflect a new beneficiary designation.