Rooth & Rooth Elder Law Attorneys offers professional probate services to residents in and around the Seminole, FL area. With more than 50 years of combined experience, our highly qualified team is dedicated to providing clients with personalized services.
What Is Probate?
Probate is a court process of transferring legal title of probate assets from the deceased person to the beneficiaries. Any asset in the deceased persons’ name alone is potentially a probate asset, which is often referred to as an “estate asset.” Some solely-owned assets of the decedent may transfer upon death to beneficiaries. Probate focuses on all assets in the decedent’s name alone that are unable to transfer without a court order issued during the probate court process. The most common assets requiring the probate process include the following: real estate, bank accounts, investment accounts, stocks, and personal property.
Florida law provides for two different probate proceedings to transfer legal title: Formal Administration and Summary Administration. A qualified probate attorney will evaluate the entire estate, determine assets and identify potential creditors before determining if a Formal Administration or a Summary Administration is best for your particular estate situation. If the wrong probate process is used the probate will be denied by the probate judge and a second probate process started following the correct probate process, costing you twice as much in court costs and potentially many extra months of the probate process.
An attorney evaluating an estate for probate will ask many questions and request many documents. Some of the most common legal issues an attorney has to consider and evaluate are the following:
- Determine the validity of the Last Will and Testament under Florida law;
- Review the Last Will and Testament for potential errors or omissions;
- What are the probate assets;
- Homestead rights;
- Elective share of the surviving spouse;
- Life estates;
- Deceased beneficiaries or unknown beneficiaries;
- Potential legal disputes involving the estate;
- Pending legal disputes involving the decedent;
- Was the decedent living in an assisted living or nursing home;
- Was the decedent receiving Medicaid benefits and is the State of Florida entitled to Medicaid reimbursement;
- Is a beneficiary receiving Medicaid benefits and will the inheritance affect those Medicaid benefits?
Do You Need a Probate Lawyer?
Probate is a court process with specific laws and rules that must be followed in order to complete the legal proceeding. Rarely does a person complete this process without the assistance of an attorney. When an attorney is not utilized we often see the probate rejected by the court for any number of requirements. This extends the probate process indefinitely until the probate procedure and requirements are met. Often times we are retained after the personal representative has attempted to complete the probate process on their own. Sometimes we are fortunate and can continue the probate process, and other times we must start from the very beginning in order to protect the estate assets from potential creditors.
Is Probate Required?
Below are a few examples to help you evaluate a typical probate situation. Each example displays a different aspect of probate to help determine if probate is a necessary process. If the examples leave you with additional questions, you should consult an attorney.
Mom passed away with a checking account with $20,000 in it. The bank refuses to give me the money because the account has no designated beneficiary. Do I need probate? Yes, probate is required to transfer ownership of those funds to the beneficiary. The money will remain in the bank account until the transfer is approved through the probate process.
Mom passed away with a checking account with $20,000 in it. The bank transferred the money into an account with my name. Do I need probate? No, since your mom designated the account payable to you upon her death no probate is required to transfer ownership of those funds. The ownership transfer occurred at death.
Mom passed away and owned the house she lived in for the last 40 years (no other names are on the deed). Do I need probate? Yes, since the house is titled in your mom’s name alone, transferring legal title to the beneficiaries requires probate. This situation raises multiple probate issues and demonstrates why an attorney is important to navigate through the complexity of Florida probate law. An attorney is best to determine if a Formal Administration or a Summary Administration is the appropriate probate process. An attorney is also best to address Homestead and creditor claims issues.
Why hire a probate attorney?
Creditors! Creditors have legal protections and rights under Florida law to seek payment from an estate for outstanding debts. Probate identifies potential creditors, and those creditors are provided proper legal notice to avoid the creditor from pursuing future lawsuits against the estate and the personal representative.
The qualified probate attorneys at Rooth & Rooth are well aware of creditors rights and what is procedurally required to properly notify them of an open probate proceeding. Not every creditor is entitled to payment from an estate, but all creditors must be notified of the probate. As attorneys, we follow Florida law and protect the estate from paying creditors that are not entitled to payment for outstanding debts of the decedent. This legal knowledge potentially saves the estate thousands if not hundreds of thousands of dollars that now go to the beneficiaries.
The benefits of hiring a probate attorney far outweigh the detriments. The legal professionals of Rooth & Rooth are familiar with the probate process. With over 50 years of combined probate experience, these probate attorneys are well equipped to address your probate and estate needs. As probate attorneys, we do our best to expedite the process and circumvent certain technical aspects that you may not be prepared to handle on your own. A lawyer takes on the responsibility of drafting and filing the required court documents while complying with the Florida probate code and procedure to successfully distribute the estate assets to the beneficiaries and to complete the probate process.
If you are looking for skilled lawyers who can provide top-notch probate services and helpful resources, Rooth & Rooth Elder Law Attorneys is a great choice. Give us a call today at (727) 397-4768 to discuss your options.