The process of probate can seem relatively simple. However, with inheritance and financial assets on the line, disagreements often arise that can complicate and delay the process. Any interested party can start litigation in probate if they have legal grounds to do so. This could include beneficiaries who disagree with the executor's management of the estate, creditors challenging a dismissed claim, or dis-inherited heirs disputing the will's validity.
The outcome of any litigation proceedings can significantly affect probate and the division of the final estate to the beneficiaries. Often an estate is the culmination of the descendant's life's work and savings, so there can be a lot to lose in litigation.
Probate is a unique area of the law in Florida and requires specialist understanding and experience to secure successful outcomes in probate lawsuits. Similarly, probate matters are often closely linked to litigation involving trusts and other will substitutes. Legal representation from a knowledgeable attorney with experience in probate services, and associated matters, is essential to protect your inheritance or rightful assets and secure the outcome you deserve.
At Miami Family Law Group, PLLC, our attorneys are specialists in probate law and have successfully fought many complex probate cases. If you are concerned about probate matters, act fast to avoid losing your chance to contest. Contact Miami Family Law Group, PLLC today at 305-916-4053 to secure representation for an experienced probate attorney in Brickell, Miami, FL.
The Probate Process In Florida: Step-By-Step
Probate is the legal process of administering an individual's will and estate after they have passed away. In purely administrational probate cases with no complications, the court simply oversees the process to ensure it is in line with Florida probate law. However, disputes and challenges can arise in some cases that may involve litigation in probate court to resolve.
Complications can arise at a number of these steps that may result in litigation action. Often, probate litigation is used in cases of creditor claim disputes, challenges to the will, and problems with personal representative conduct, to name a few.
The details of the probate process in Florida are as follows:
Filing the Petition
Probate begins when any interested party files a petition with the probate court in the county where the individual died.
Appointing the Personal Representative
Usually, probate administration officially begins approximately 1 month after the initial petition is filed, with a letter of administration from the court. This letter also names the personal representative or executor of the estate, who is responsible for administering the division of assets. This letter gives the representative legal authority to act on behalf of the estate's beneficiaries.
Notice to Creditors
All creditors must be notified of the estate's administration and requested to file claims against the estate for any of the descendant's unpaid debts. The representative must take diligent steps to identify all potential creditors. Failure to correctly notify creditors can lead to substantial complications for the estate.
Estate Inventory and Accounts
The personal representative must gather all assets within the estate, make an inventory, and value the assets. This includes real estate, all financial accounts, stocks, vehicles, clothing, jewelry, and other property.
Paying Creditors
Creditors have an allotted time frame in which they can file claims against the estate. Once this period has passed, claims are evaluated and either paid or contested if they are believed to be invalid.
File Accounts
The probate accounts include the value of all assets in the estate, the details of the paid claims, and estate costs and expenses. These must be filed and approved by the probate court. Any inconsistencies or problems with the accounts may mean that the court withholds approval which can cause delays in the process.
Distribute Assets
Once the accounts are approved by the court, the representative distributes the estate's assets to the beneficiaries, in line with the terms of the will or intestate succession.
Close the Estate
After distributing all the assets correctly, the representative closes the estate by filing a petition with the court asking to be discharged of their obligations.
Trust Litigation
In addition to a will, many people use trusts to administer assets to beneficiaries. Trust litigation can be tied to probate litigation and is often triggered by the probate process, but typically trust litigation is an independent action. Litigation can start due to concerns over trust administration and accounting, ambiguous trust paperwork, invalid trusts, and a breach of fiduciary duty, for example. Similarly to probate litigation, trust litigation can involve challenging the trust itself or interpretation of the trust terms.
In some situations, challenging a trust may go hand in hand with challenging a will, and you may need to challenge a will to be able to challenge the trust. However, a trust lawsuit does not take place within the probate proceedings regarding an individual's will. Instead, it requires a separate complaint. However, trust litigation is often closely linked to probate proceedings. An attorney with an understanding of both probate law and any probate litigation you are involved in is likely to benefit your trust dispute case.
Probate Without A Will
If an individual passes without a valid will or trust, this is known as an intestate estate. Intestate can also be triggered if a will is declared invalid in court. In these circumstances, the decedent's assets will be divided according to Florida law on intestate succession. In Florida, intestate succession processes state that a decedent's estate is assigned to their closest relatives. The law outlines the specific order in which assets are assigned to relatives, which is as follows:
- A surviving spouse of the descendant is the first to inherit the estate. A surviving spouse must have been legally married to the descendant and not divorced. If the descendant had no children, the surviving spouse inherits the entire estate.
- Following the spouse, the next in the order of intestate succession is the descendant's children. This category includes both adult and minor children but does not include step-children. A child must be biological or legally adopted to qualify for this inheritance. If the child has died before the descendant, the portion of the estate could go to any grandchildren.
- If the descendant has no children and no legal spouse, their parents will inherit the estate.
- Following the parents, if they are no longer alive to inherit the estate, the assets are split between the descendant's siblings. If there is no surviving family, the estate will go to the State of Florida.
In standard situations of intestate succession, without complications, the surviving spouse would inherit the entire estate, in line with the above framework. However, family circumstances can often be more complex than the standard framework allows for. As such, amendments can be made to the process to accommodate differences in family units. For example, if the descendant's current spouse is not the parent of their children, the estate may be split differently. The surviving spouse may inherit 50% of the estate, while the children from a previous relationship inherit the other 50%.
The State of Florida requires that an attorney is present throughout the intestate process. This is beneficial as it allows you to ensure that the process adequately reflects your family situation, and an attorney can help to navigate any complications that arise. Legal counsel experienced in probate matters is recommended due to the complex nature of probate cases and estate division.
How Can Intestate Succession Be Avoided?
The process of dividing an intestate estate essentially means that the State of Florida decides how an individual's assets are divided among their relatives. For most people, this is a less-than-ideal situation that doesn't always allow for complicated family dynamics or accurately reflect the wishes of the descendant. Where possible, detailed estate planning should be undertaken to ensure that the chosen beneficiaries receive their rightful inheritance.
Valid Florida estate planning documents, including wills and trusts, are the best way to ensure asset protection and that an estate is administered in line with a descendant's wishes. Including the power of attorney details for both financial and medical requirements can also be beneficial. Of course, death is not always predictable, and sometimes estate planning is not completed beforehand. In these situations, a skilled probate attorney will be beneficial to navigating the intestate process and ensuring the best estate division possible for your family.
Are There Any Assets That Don't Require Probate?
Assets that are subject to probate typically include anything written in a descendant's will, such as property, possessions, and financial resources. However, assets that are exempt from the probate process can be awarded directly to the heir or beneficiary. Many people set up payable-on-death accounts and policies that have designated beneficiaries attached to them. These assets, such as life insurance policies, bank accounts, and retirement accounts, will not be included in the probate process. These are often known as will substitutes.
Additionally, anything co-owned with another individual typically does not go through probate and transfers ownership entirely to the other individual upon death. For example, often married couples jointly hold real estate titles with rights of survivorship. Another frequently used method of leaving property in Florida that won't require probate is revocable trusts.
Although many alternatives to wills, such as revocable trusts, are designed to avoid the process of probate, in reality, this is not always the case. If trustees, beneficiaries, excluded family members, or other interested persons dispute the estate division, this may result in probate litigation.
How to Find The Best Probate Litigation Attorney
Finding the right attorney for your case can feel like an overwhelming task. Firstly, a law firm with a narrow focus, such as family law and probate law, ensures that your attorney spends all their time and resources dedicated to cases like yours. An attorney who tries to do it all including personal injury, corporate law, business law, and real estate law, may not have the time or resources necessary to handle the complexity of your case.
Next, it is good to find a lawyer who is local to you. This ensures that they understand the relevant state laws, and they may even have experience with the Judge overseeing your case before so that they can tailor their approach.
Finally, it is important that your attorney has plenty of experience navigating cases similar to yours, and can back that up with testimonials from previous clients.
At Miami Family Law Group, PLLC, we are committed to family law and probate in Brickell, Miami and surrounding areas. We are committed to families and utilize a holistic approach that minimizes conflict wherever possible. We are also proud to be able to offer Spanish speaking attorneys.
Our law firm has been helping families like yours for over three decades. We are always updating our skills and are committed to offering the best and most comprehensive support for our clients.
Contact Miami Family Law Group, PLLC in Miami Dade County Today
Probate matters in Florida are complex and closely related to many other areas of law involving family law, estate planning and management. Similarly, probate courts have strict requirements and operate with tight turnaround times that must be adhered to. Missing deadlines or wrongly completing paperwork to submit to the court can result in delays, additional expenses, or even case dismissal on procedural grounds.
The nature of probate litigation usually means going up against another party who disagrees with your claim. Often, when large sums of money, such as inheritance, are on the line, parties will fight aggressively to dispute your claim. A knowledgeable and passionate probate lawyer gives you the best chance of a successful claim and securing the assets you deserve.
No two probate cases are the same. As such, a one-size-fits-all approach won't work, and successful attorneys must have a comprehensive understanding of probate law and strategies. At Miami Family Law Group, PLLC, our attorneys work with you to develop customized solutions to the unique circumstances of your case. Our practice focuses on ensuring our legal services are underpinned by our expert knowledge and have the best chance of securing the outcome you desire in the courtroom.
The idea of challenging probate can be overwhelming. Not only do you need to manage the legal element but litigation can often cause tension among family members and beneficiaries. This is on top of grieving for your loved one. However, a lawsuit may be the only option to protect your interests and secure your inheritance.
At Miami Family Law Group, PLLC, we will be there for you every step of the way and manage the legal complexities, reduce your stress, and allow you to focus on yourself and your family.
We represent clients across South Florida including Miami Beach Fort Lauderdale and Coral Gables.
Contact a Brickell probate litigation lawyer today at 305-916-4053 to take the first step to protect yourself and your family during probate.
