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Probate Administration
The Law Office of Ellen T. Chadwell offers legal representation in probate matters. When a family member or close friend passes, the survivor often finds him or herself in unfamiliar territory and at a time of depression and grief.
You may have basic questions like “do I need probate,” “what are my responsibilities as Personal Representative of the estate,” or “how do I access my father’s safety deposit box.”
The Law Office of Ellen T. Chadwell is there for you, offering an initial consultation in person or on the phone, answering the many questions you will have and, if probate is necessary, representing the family or the Personal Representative named in the Will.
What is Probate?
Probate is a court-supervised process where the assets of a deceased person (decedent) are identified and then distributed to the decedent’s beneficiaries.
As part of that process, a decedent’s debts are paid if the estate has sufficient assets. The law permits certain expenses, such as funeral expenses and the expenses of administering the estate, to be paid first before the outstanding debts of a decedent will be paid. Once all debts have been paid, the remaining assets are distributed to the decedent’s beneficiaries.
Probate administration applies only to those assets titled solely in the decedent’s name or owned with others without rights of survivorship or a transfer on death provision (“Probate asset”). For example, a checking account in both husband and wife’s name will become the surviving spouse’s property and is not a probate asset. While many people assume that probate is always needed when a person dies, this is often not the case.
There are two main types of probate administration under Florida law:
- Formal Administration
- Summary administration
Formal Administration may be filed when there are assets exceeding $ 75,000, and/or when it is necessary to appoint a representative to act on behalf of the estate. In formal administration, Letters of Administration, sometimes called “Letters Testamentary,” are issued to the personal representative which authorizes him or her to manage a decedent’s assets, conduct financial transactions on behalf of the decedent and administer the estate. The Court oversees the administration of the estate to ensure the decedent’s debts are paid and distribution is made to the heirs and/or beneficiaries.
During this process, the creditor’s claims are paid (if assets are sufficient), and an accounting and distribution plan are prepared and filed before the estate is closed. Although most estates are closed within 12 months, large or contested estates have been open for many years.
Summary Administration is an abbreviated process of distributing a decedent’s assets when the estate has a value of $75,000 or less, and does not require the appointment of a personal representative.
A Petition for Summary Administration can be filed by any beneficiary or nominated personal representative in the decedent’s will, or by an attorney representing that petitioner. Because Summary Administration is a short and streamlined process, Ms. Chadwell offers a fixed fee for these legal services, ranging from $1500–$2000, depending on the anticipated legal costs.
Summary Administration ends with an Order of Summary Administration from the court directing all persons/entities that have possession of a decedent’s assets to transfer or distribute these assets to the persons named in the Order. If the asset is real property, the Order acts as a conveyance of title and is recorded in the Official Records of the county where the property is situated.
Why Is Probate Necessary?
Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s family or those beneficiaries named in a will. If the decedent left a valid will, the will must be recognized by the Court, or “admitted” as part of the probate process in order to pass ownership (or title) of the decedent‘s assets to the named beneficiaries. If the decedent had no will, he is said to have died “intestate,” and probate is necessary to pass ownership of the decedent’s probate assets to a surviving spouse and/or children. If the decedent has neither, Florida statute dictates what family members will receive the assets.
Probate Litigation
Sometimes adversarial claims arise during the administration of the estate regarding the validity of a will or the intended beneficiary of a Will. These claims result in adversary proceedings, which are litigated by parties and their attorneys much like any other civil litigation. These adversarial claims are usually highly contested and emotional matters which require the representation of a seasoned litigator. Examples of such claims are:
- The natural heir or previously named beneficiary of the deceased person may believe that a care-giver or other family member has improperly influenced the deceased to change her Will, thereby disinheriting the heir and makes a claim of undue influence on the decedent.
- A Will has been found other than the one being probated and the Will filed in the probate is contested.
- The Personal Representative has disposed of assets to the detriment of a beneficiary or has paid herself an unreasonable fee or for administering the estate.
- A creditor has filed a fraudulent claim.
Beneficiaries may also have concerns during the probate of an estate. In which case they are well advised to seek legal guidance and obtain independent counsel, if necessary. (It’s important to note that the attorney representing the Estate does not represent the beneficiaries.) Often times these concerns can be resolved with a request for documentation from the Estate or examination of its financial accountings.
Whatever your situation, Ms. Chadwell brings her years of litigation experience to bear in representing clients in adversarial proceedings in the probate context.
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