There are several reasons that many Floridians build their estate plan around probate avoidance. One reason: Florida probate can take a very, very long time. While the process is ongoing, your beneficiaries may not receive their bequests, and the court will not discharge your personal representative from his/her duties. Protracted probate can also drain funds from your estate that you would prefer go to your beneficiaries.
Below we tell you the basic steps in the probate process and explain why it can take so long. We then tell you the proactive steps you can take that will help prevent additional, unnecessary delays. Last, we provide a brief description of the legal strategies that can keep your family from having to deal with the probate court altogether.
Probate Basic Steps
Formal Probate (the procedure most common for middle class families) generally takes several months at a minimum from start to finish. Complications can drag out the process for many more months – in some cases, even years. And it’s not just the time element that’s daunting: as mentioned above, administrative and legal fees keep piling up while the process is pending.
Just like the families we assist, we probate lawyers are not immune to frustration. We want to wrap things up quickly for clients. But we are duty-bound to comply with all the exacting rules for probate, crossing every “t” and dotting every “i.” There are no short-cuts to this process!
Here are the basic elements of the Florida probate process. For clarity, we compress them into a few bullet points and omit numerous sub-steps.
- Probate starts when a petition is submitted to the court, notifying the court of the death. Various documents must be provided, including the decedent’s will. (If there is no will, the process remains effectively the same; the only difference is that distributions to beneficiaries will be based on the state’s laws of intestacy, not the provisions of the will.)
- The court must be given a list of beneficiaries and a rough idea of the value of the estate.
- If there is a will, the court examines it for validity. If valid, the court appoints a personal representative (usually the individual named in the will, or someone else if there is no will).
- The court then issues Letters of Administration to the personal representative. Letters of Administration give him/her the legal authority to administer the estate.
- Now comes the heavy lifting for the personal representative: He/she must identify the decedent’s creditors and assets. Known creditors must be contacted and a notice placed in a newspaper alerting all potential creditors that they have three months to make a claim against the estate.
- The personal representative pays creditors, including any taxes the estate owes. Accountings must be provided to the court and to beneficiaries.
- Only after creditors have been satisfied – that includes any taxes owed – can distributions be made to beneficiaries. The personal representative must then supply proof to the court that creditors have been paid and beneficiaries have received their funds. The court can then be petitioned to close the probate case.
Reasons for Delays And What You Can Do About Them
Here are common issues that create procedural bottlenecks during the probate process. The good news is that you have control over some of these issues.
- Court backlogs
Even if the personal representative does everything correctly and timely, that doesn’t mean the court will move speedily. Backlogs are common. All this is obviously out of your control, and will be out of your personal representative’s control, too.
- Technical deficiencies of the will
You can do something about this. The court will determine if your will is valid and if it can be accepted into probate. Any problems with the will can create delays. Is it executed correctly? Do ambiguities and vague language in the document leave your estate vulnerable to challenges? Is your will self-proving? If not self-proving, original witnesses will have to be located – if that is even possible – and oaths taken.
It follows that you can avoid delays if your will is well-drafted, so get help from an experienced estate planning attorney. Do-it-yourself wills, and wills drafted by legal generalists rather than estate planning attorneys, are more likely to be deficient and create problems that lengthen the probate process, or even cause your will to be rejected entirely by the probate court.
- Personal representatives who cannot serve
You might be astonished to learn the volume of wills the court receives in which the named personal representative – and backups, too – are no longer alive, or in such ill health that they cannot do the job. This is why you should periodically review your will. We offer our clients a free review every three years, or sooner if needed. One of the issues we address with you is whether your named personal representative as well as backup personal representative are still suitable for the job or if they need to be replaced.
- Beneficiary complications
Beneficiaries will need to be notified and sign off on certain formalities. If they cannot be located, it will add significant delays to the process. Names may have changed through marriage or divorce, or may be misspelled in the will, making it challenging to contact them. We had one case in which a beneficiary in another state had been incapacitated for years; the probate here in Florida could not proceed until the other state appointed a guardian to represent the disabled beneficiary. This process added several additional months to the probate proceeding.
If the beneficiary is deceased and the will identifies the contingent beneficiary, or if there is no will and Florida’s intestacy law dictates that the deceased beneficiary’s children get the decedent’s inheritance, those individuals must be noticed, too. If the contingent beneficiaries are minors, funds cannot be directly released to them. All of these issues will pile on additional delays.
Keeping an up-do-date list of your beneficiaries can be an enormous help to your personal representative and expedite the probate process.
- Creditor claims
Creditors have 90 days in which to file a claim against the estate, but that doesn’t mean every claim against your estate will be valid. Additional time will be required if your personal representative contests a claim. This frequently occurs with a decedent’s medical bills. Anyone who has ever had to resolve a billing issue with a health insurance company knows that process can be agonizingly slow.
To secure the funds to pay off creditors, the personal representative may need to sell real property or other assets. Obviously this will extend the amount of time needed to finish probate.
- Nature of estate assets
If you have a complicated estate with many assets, probate proceedings will take longer. Examples include business holdings, or real property located out of state (a probate will have to be initiated in every state in which the decedent owned real property).
Therefore, if it is possible to consolidate your assets, do so; it can help speed up probate. It is obviously easier (and faster) for your personal representative to deal with one or two banks or brokerages than many more.
Some assets are relatively easy to value – for example, a mutual fund. But others, like a home or collectibles, will require a professional appraisal. Our office recently had to get an appraisal for a decedent’s massive collection of rare coins. We had to find a suitable appraiser, then it took weeks to secure an appointment, and more weeks to receive the written appraisal, which had to be submitted to the beneficiaries.
- Personal representatives who are too busy to get things done quickly
Administering an estate is time-consuming and labor-intensive. In Florida, a personal representative must retain an attorney, and may seek assistance from other professionals, too – for example, realtors, accountants, etc. Even so, the personal representative will shoulder a substantial burden and will need time and energy to get things done. The personal representative must identify the decedent’s assets, creditors and beneficiaries. He/she will need to go through your files, both physical and digital. The personal representative must keep the court and beneficiaries informed with regular accountings.
A personal representative with a demanding job, family responsibilities or other obligations may be hard-pressed to get all these tasks done in a timely manner. Selecting someone trustworthy for the job who also has sufficient time to devote to these tasks can be challenging, but can shorten the time it will take to settle your estate. Give a great deal of thought to whom you name as your personal representative, and talk over your possible choices with your estate planning attorney.
- Disorganized or missing files, cluttered homes
When clients ask us what they can do while they are alive to make things easier for their surviving family and speed up the probate process, our first tip is always: Get organized and reduce clutter in your home. Unlike many aspects of the probate process, this is one area over which you have significant control, in advance. Tidy; give away items to family members who want them, or sell them; organize paper files and digital files. Keep an updated inventory of debts, assets, credit cards, along with passwords and contact information. Keep a list of your beneficiaries with their updated addresses and contact information.
- Co-personal representatives who disagree
If you name co-personal representatives, they will need to act in unison on a timely basis to get the probate proceeding opened and keep it moving forward without undue delays. Some co-representatives work well together. But that is not always the case, even if the co-representatives have shared a good relationship before tackling the job. Lack of cooperation between co-representatives can bog down probate. Therefore, you should think seriously about whether you want to appoint more than one personal representative, and if you do, how likely they are to work together amicably and effectively coordinate all the required tasks. An experienced estate planning attorney will help you think through this important decision.
- Uncooperative beneficiaries
Beneficiaries will need to sign off on certain steps. If they are too busy or uncooperative or just disorganized, this will slow down the process. This is why we tell our clients that if they are disinheriting a child, do NOT leave them $1 as some suggest. Doing that will make it necessary for the personal representative to receive recipts for them and provide them to the court, or explain to the court why they do not have receipts. We recommend that your will simply acknowledges the child’s existence and states explicitly that you have made no provision for that child (and possibly that child’s lineal descendants).
- Contested estates
Sometimes a disgruntled person thinks he/she should have been a beneficiary in the will. Some beneficiaries will claim they are entitled to more than you left them. If any of these parties contests your estate, it will significantly delay the probate process. Some probate estates have dragged on for years for this reason, dogged by lawsuits and counter-lawsuits. A well-written, crystal-clear will that conforms to all the legal requirements of Florida law can minimize the chances of your estate being tied up in litigation.
Including Probate Avoidance Stategies In Your Estate Plan
If you decide you want to spare your family the delays and aggravation that often accompany probate, you can utilize several probate avoidance strategies, depending on your circumstances.
- Living Trust: In Florida, a living trust is often the optimal choice. Assets that are placed in a properly drafted living trust will not go through probate and will not need court oversight. Your trustee will pay your creditors and distribute funds according to the directions you have included in your trust. And since this is a private document, unlike a will that is public record, there is less chance it will be contested.
- Death Beneficiaries: Assets that have a death beneficiary will pass to the beneficiary without probate. These assets are distributed to whomever you have named as the beneficiary.
- Joint Ownership: Certain assets can be jointly titled with rights of survivorship. Then, when you pass on, the asset passes to the survivor, without probate. However, you must be very cautious about joint tenancy. Making someone a co-owner means the asset becomes vulnerable to the joint owner’s creditors.
The Karp Law Firm is experienced in estate planning and probate. We can assist you to set up your estate plan and can also assist with estate administration if you are a personal representative. Please contact us at (561) 625-1100 to set up your consultation.
