What You Need to Know


Probate: An Overview

After saying goodbye to a loved one, the questions start: How do I settle my loved one’s affairs? What are the assets? Who are the beneficiaries? How do I pay the debts? How do I distribute the assets? Tampa Probate Lawyer Michelangelo Mortellaro can answer all your questions and help.

Most of the answers depend on how the assets are titled and who owes the debt. That may seem simple, but that isn’t necessarily the case. Oftentimes, well-meaning people believe they are doing the right thing, but in reality, they are creating issues that prolong the process of settling the estate. Most people set out with the intention of making things easy for their family and avoiding probate by writing a Last Will and Testament. However, many people misunderstand how a will works. At Mortellaro Law, we help our clients avoid the expense and time of probate through proper estate planning.


Avoiding Probate

At Mortellaro Law, we believe the best option for avoiding probate is through a grantor trust, which is created before death. Ideally, before the decedent’s death, all assets are titled in this trust or this trust is named as a beneficiary. But, even with an expertly drafted estate plan, the way assets are titled is the key to making the plan work. Some assets may not make it into the trust, and those assets will be subject to the probate process. It is always best to review the estate plan and all related assets every three to five years with an experienced attorney.


What is Probate?

Probate is the court-supervised process designed to address both the assets and debts of the decedent. For an attorney to give the best guidance on how to administer an estate, it is essential that you provide as much accurate information as possible. The attorney needs to know the nature and value of the decedent’s assets, the number and type of potential creditors, the ages and relationships of all beneficiaries, the length of time elapsed since the decedent’s passing, and whether there are executed estate planning documents. Statements from financial institutions and public records can shed light on how the assets are titled. The more information you can provide, the more productive your consultation with the attorney will be.

After gathering and reviewing this information, the attorney can determine if a probate administration is necessary, and if so, what type of probate suits your needs.


The Role of a Will

Many people believe that if they have a valid Last Will and Testament in place at the time of their death, then their estate will avoid probate. This is not the case. The will simply acts as a road map through the probate process. In fact, the will only deals with assets solely in the deceased person’s name that are not contractually obligated to be paid to a beneficiary.

For example, let’s look at a bank account. If the decedent named one or more beneficiaries on the account, that account is not governed by the will. Instead, it is paid directly to the beneficiary named on the account. If there is no beneficiary named, the account is governed by the will. Through the will, a person can, among other things, disinherit their children, leave assets to charities, and provide for the care of their pets.


Validating a Will

Under Florida law, the decedent’s original Last Will and Testament must be deposited to the Clerk of Court in the county of the decedent’s passing by the Personal Representative within 10 days of learning of the death. If you are unable to locate the original will, a copy can be given to the court, but the administration process will be slower. In Florida, the law assumes the original was destroyed by the decedent intentionally. Therefore, additional steps may be necessary to prove the presented will is valid, and not merely lost or inadvertently destroyed.

There are multiple rules governing the validity of a will. Sometimes, even a valid will that was written and executed in another state is not valid under Florida law or requires additional filings. Have the attorney review the original will as soon as possible to determine if it is valid under Florida law.


What If There is No Will?

If the decedent dies without a will or it is deemed invalid, their assets will pass according to the state’s statutes. This is called dying “intestate.” In Florida, that generally means if the decedent died without a valid will that:

  • if there are children (biological or legally adopted) but no spouse, the decedent’s children inherit everything;
  • if there is a spouse but no descendants, the spouse inherits everything;
  • if there is a spouse and descendants from that union, and the spouse has no other descendants, the decedent’s spouse inherits everything;
  • if there is a spouse and descendants from the decedent and that spouse, and the spouse has descendants from another relationship, the decedent’s spouse inherits 1/2 of the decedent’s intestate property, and the decedent’s descendants inherit 1/2 of the decedent’s intestate property;
  • if there is a spouse and descendants from the decedent and someone other than that spouse, the decedent’s spouse inherits 1/2 of the decedent’s intestate property, the decedent’s descendants inherit 1/2 of the decedent’s intestate property;
  • if there are parents but no spouse or descendants, the decedent’s parents inherit everything;
  • if there are siblings but no spouse, descendants, or parents, the decedent’s siblings inherit everything.

Note that under Florida’s intestacy laws, stepchildren and foster children are not entitled to inherit property unless they have been legally adopted by the decedent. There are more rules and exceptions in intestate administrations based upon the relationships of the heirs to the decedent.

Special exceptions apply to spouses regarding the distribution of all the decedent’s property, not just the probate assets, and particularly about homestead property. Additional steps must also be taken to provide for any minor beneficiaries.

As you can see, to die without a valid will can result in your estate not being distributed to those you intend. This is especially true if you have a second marriage, children from a prior marriage, special needs spouse or children who receive government benefits. For example, if you have a spouse receiving Medicaid, and he or she inherits from a decedent, that will likely cause the beneficiary to lose his or her Medicaid benefits.

To discuss the particulars of your circumstances, contact Mortellaro Law for a free consultation with an experienced attorney.

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