PROBATE

After an individual dies, all assets of the decedent must be transferred out of his or her name. Assets that are jointly owned, have a beneficiary designation or that are payable on death, do not have to go through probate. However, all other assets that are titled solely in the decedent’s name must go through the probate legal process and this can often take between six (6) to twelve (12) months.

Through probate, taxes and debts are paid, and the remainder is passed to the beneficiaries. We are happy to serve Broward County probate clients, Miami-Dade County probate clients and Palm Beach County probate clients. Probate can be time-consuming and expensive; accordingly, a variety of creative legal techniques have evolved to successfully avoid the formal process. These techniques include living trusts, gifts, and keeping assets out of the estate through the use of jointly-held property. The latter is a common strategy used by spouses: a checking account held by two people as joint tenants with right of survivorship prevents any balance in that account from becoming a probate asset, should one of the account-holders die.

For many probate practitioners, the goal is to avoid having any, or only a few, of an individual’s assets from ever entering probate. While avoiding probate does not circumvent federal estate or gift taxes, it can save significant money and time for all involved.

The most cumbersome type of probate is the full, formal and supervised probate proceeding. In Florida, the state probate court oversees the entirety of the estate administration and the probate judge must approve each and every transaction of the estate. If at all possible, this type of supervised administration is avoided. Today, supervised probate proceedings usually occur only when a will contest is involved, a party requests it, or the abilities or activities of the estate representative have been challenged in court.

It is important to remember that a Will does not avoid probate, it simply tells the Court who your beneficiaries are and where your assets are to be distributed. Many people will use a revocable living trust to avoid probate. A living trust is similar to a Will in that it tells everyone who you want to have your assets, and who you want to administer the trust after your death (the successor trustee). Further, a living trust can avoid probate if your property is titled in the name of the trust. Therefore, at the death of the decedent, the successor trustee takes over and can administer the trust in accordance with the trust provisions.

How We Can Help

An attorney’s assistance in the probate process can be vital. Attorneys understand how best to “marshal” the assets, i.e., determine which assets are indeed part of the estate; how to properly file an Inventory and Appraisal of the assets; when, and in what manner, to pay the estate’s taxes, debts, and remaining liabilities; and how best to distribute those assets remaining in the estate’s inventory after all other processes have been concluded. David Di Pietro & Associates represents beneficiaries, personal representatives, trustees, creditors, or other interested persons throughout Florida.

When a loved one dies and property needs to be divided, disputes can arise, even when the decedent has a solid estate plan in place. Issues can arise regarding the actions of the personal representative or the trustee. Further, the prior mental state of the deceased may be called into question. Problems with creditors may need to be addressed. There may be a number of beneficiaries and some of them may not be content with a decedent’s estate plan. When this happens, you want an experienced attorney to protect your interests.

David Di Pietro & Associates represents personal representatives, trustees, heirs, creditors, and other parties with an interest in an estate. David Di Pietro & Associates handles cases involving contested wills as well as contested trusts. Regardless of the complexity of your situation, David Di Pietro & Associates can help you understand all of the legalities involved and develop a strategic approach to your situation.

Probate Terms

Personal Representative (same as Executor) – the person appointed by the court to administer the estate.
Formal Administration – a court proceeding whereby a personal representative is appointed for estates with assets over $75,000 and/or which have creditors.
Summary Administration – a more informal court proceeding for estates valued at less than $75,000 and/or which have no creditors or where the decedent has been dead for more than two years. No personal representative is appointed.
Ancillary Administration – a proceeding for a non-resident of Florida who died owning real property in the state of Florida – depending on the value of the property, this can be a formal or summary administration.
Beneficiary – a person who inherits property from the decedent’s estate either by will or by statute.
Testate – an estate is testate when someone dies having signed a Last Will and Testament.
Intestate – an estate is intestate when someone dies without a Last Will and Testament.

Common Probate Disputes

  • Challenges to the validity of a will or trust based on the competency of the party making the will or trust
  • Challenges to the validity of a will or trust based upon the existence of additional or subsequent will or trust
  • Challenges to the validity of a will or trust based upon undue influence exhibited over the decedent prior to death
  • Questions regarding whether a fiduciary has breached his or her duties to the estate, trust or to the beneficiaries
  • Creditor disputes