The Probate Process: What It Is and How To Prepare For It

37323216_s - single lady on swing in sunset.jpg

The death of a loved one is never easy. During this time, you should be surrounded by those who knew your loved one best so you can celebrate their life. 

It is a time when you should feel open to feeling and expressing the emotions that may come your way. It is a life event that is life-altering. 

Given the gravity that is losing a loved one, the last thing any person wants to experience is the long process of probate. You may be wondering: What is probate, and why is it something we want to avoid? When we do have to go through probate, what exactly does that entail? Lastly, how can you prepare for probate? 

The Probate Process Explained

Probate is a legal process that is conducted in the aftermath of a person’s death. It begins with that individual’s estate plan, if they had one. In either case, family members are tasked with handling their loved one’s affairs when they are gone. It can be arduous and highly emotional if the deceased has not made their wishes known with a properly executed estate plan and/or other instructions before their death. 

When this is the case, family and friends must try to decide what their loved one would have wanted, and any legal matters must follow the default laws of the state.  

All of a decedent’s assets that are in their individual name and not devised under a beneficiary designation (collectively referred to as the “estate”) pass through probate whether or not there is an estate plan, but the probate process with an estate plan is quicker, easier and less costly. 

When is Probate Required?

Even though all estates go through the probate court, there is one major difference when comparing the process for those with an estate plan to those without. 

With an estate plan, the probate court simply files the decedent’s will in the public record and then appoints a personal representative over the estate of the deceased. This personal representative is usually named in the estate planning documents and they are tasked with settling any valid creditor claims, as well as distributing assets in accordance with the wishes set forth in the Last Will & Testament.  

Without an estate plan, the probate court has a heavier hand in the closing of the decedent’s estate. The court will distribute assets according to Florida intestacy laws, meaning distributed to heirs-at-law. The probate court’s actions do not account for circumstances such as a strained family relationship. Property is distributed in a way in which the courts assume the average person would distribute their property among loved ones. 

How You Can Prepare For Probate

Considering that an estate will go through probate whether there was a Last Will and Testament in place or not, it is important to know that a Last Will & Testament will serve to streamline this potentially lengthy probate process.  

will-ingram-publishing-thinkstockphotos-122397917.jpg

A Last Will & Testament that clearly outlines your wishes makes for a more ‘cut and dry’ process to close out your estate. This one document will save your loved ones time and effort upon your passing, and can resolve potential conflicts because your wishes are fully expressed in the document. 

A common misconception is that an estate plan, and especially a Last Will & Testament, is only for those who may have larger, more wealthy assets. The truth is that a Last Will & Testament is for assets big and small. This document will both explain how you want your assets distributed, as well as name the personal representative, the person you trust to handle the rest of your affairs.  

Another way to prepare for probate is by titling real property as either jointly owned with rights of survivorship or tenancy by the entirety. Both real property titles ensure that the property is passing automatically to the surviving owner.  

You will also want to make sure any assets you have that may have a beneficiary designation, such as a payable-on-death account and any retirement accounts, have a beneficiary listed. These accounts will automatically be distributed to the beneficiary on record. 

Trusts are a great way to devise assets. Any assets may be titled in the name of a properly executed and funded Trust, and once they are, they are also not subject to probate. Technically, once these assets are named as property of the Trust, they are no longer considered assets of your probate estate. Once you die, your Revocable Living Trust becomes irrevocable, meaning your wishes will be honored regarding the distribution of the assets held in trust.  

Revocable Living Trusts are fluid documents. You are always welcome to update your Trust, removing and adding assets as you please, throughout your lifetime. If you end up passing away with assets that have not transferred to the Trust, those assets are subject to probate, however, with a Pour-over-Will in place, those assets will pass to the Trust through the probate process. 

As a surviving loved one, you can also prepare for probate by just being knowledgeable about the process. It is also important to have an open line of communication with family members, so you know if you are named as the personal representative in a Last Will & Testament, or if there are other estate planning considerations you should be made aware of.  

The experienced attorneys at Kira Doyle Law can help you navigate your estate plan as well as a probate administration (which can be very overwhelming). We will help you create an individualized estate plan that keeps your assets out of probate while providing your loved ones with peace of mind. 

Ask a St. Petersburg Probate Attorney for Assistance

If you want to form an estate plan to make sure your assets are titled in a way that your loved ones can avoid probate upon your passing, or if a loved one recently passed away, seek the counsel of experienced probate and estate planning attorneys, like the ones at Kira Doyle Law, for assistance. At Kira Doyle Law, we provide compassionate assistance in going through the probate process during this difficult time. Please call our office at 727-537-6818 to discuss how we can help.