Probate is a legal process that involves settling a deceased person’s Estate and is most often only necessary for a deceased person who died with assets titled solely in his or her name and without having made provision for those assets to pass automatically to the intended beneficiaries. A deceased person’s Last Will and Testament is instructions to the probate court. A Last Will and Testament does not typically avoid probate.
Probate includes identifying and gathering the deceased person’s assets, paying off debts, and distributing the remaining assets to the deceased person’s beneficiaries.
What happens during probate?
- Validate the Last Will and Testament: A judge verifies the authenticity and validity of the deceased person’s Last Will and Testament
- Appoint a personal representative: The deceased person’s typically has nominated someone in his or her Last Will and Testament to manage the Estate. This person is called a personal representative in Florida, but in most other states this person is called an executor or executrix. The person nominated by the deceased person in his or Last Will and Testament to be the personal representative does not become the personal representative until he or she is appointed to be the personal representative by the court.
- Gather assets: The personal representative identifies, gathers, collects, and may sell the deceased person’s assets.
- Determine debts: The personal representative determines what debts the deceased person owed and how much of those debts must be paid. This process often involves having the decedent’s final federal income tax return prepared and any paying any tax that is owed (or collecting any tax refund).
- Sell assets: The personal representative may sell assets, including non-exempt personal property and non-homestead real estate with which to pay reimbursements, the deceased person’s debts, and make cash distributions to beneficiaries.
- Pay reimbursements and debts: The personal representative reimburses others for such things as funeral expenses and money advanced for the payment of the fees and costs associated with probate and pays the deceased person’s lawful debts.
- Distribute assets: The personal representative distributes the remaining assets to the beneficiaries.
Why is probate necessary?
- Probate ensures that the deceased’s assets are distributed according to applicable law and his or her Last Will and Testament.
- Probate protects all parties involved by ensuring that everyone receives what is rightfully theirs.
- Probate prevents unscrupulous people from getting away with writing fake wills or exerting undue influence over the deceased person in the final stage of his or her life.
How long does probate take?
- In Florida, probate typically takes six months to a year. However, the length of time can vary depending on the case and how long it takes for the personal representative complete his or her work in managing the Estate (i.e., gather assets, determine debts, sell assets, pay reimbursements and debts, and distribute assets).