The Pros (and Cons) of Probate
Florida’s probate process, like any other complex framework, has its pros and cons. It can be a necessary and helpful process, but many find it a drawn-out legal nightmare.
Probate law was established to serve both the government and the intended heirs of an estate. It is important to understand both what probate is, and its potential pros and cons, as you build your estate plan or look forward into the process of probating an existing estate. By better understanding the concept of probate and its processes, you can better develop a plan to ensure that your own estate’s probate process runs as smoothly as possible.
What is Probate?
Probate is a court-supervised process utilized to appropriately distribute a deceased person’s assets to the appropriate heirs/beneficiaries after the decedent passes away. In theory, the probate process is simple. A court receives a will/is notified that the decedent passed away without a will. The court appoints a representative (often established by the terms of the last will and testament) that is appointed to gather and inventory the estate’s assets. The representative is also tasked with sending proper notifications to creditors, paying outstanding debts, taxes, etc., and then distributing the estate assets to the intended beneficiaries in accordance with probate law.
Essentially, the probate process is the gov. taking an active role to establish a process under which this “wrapping up” of an estate and its distribution take place. This is meant to protect intended heirs/beneficiaries and ensure that the distribution of the estate and the paying of necessary fees/taxes takes place as it should.
Of course, things are rarely as cut and dry as they could be. An experienced probate attorney is versed in all of the complexities of probate law, and can help individuals navigate the complications that so often arise.
The Pros of Probate
Some of the benefits of the established probate law include
- In estates left with no last will and testament, probate law provides structure to ensure that all assets are distributed according to state law.
- If there was a last will and testament left, probate helps to ensure that the intentions of the deceased are adhered to. This becomes particularly important when there are disputes among the heirs/beneficiaries of the estate.
- If there is a last will and testament in place but it is incomplete/does not address certain items, probate can help to fill the gap and help to ensure that the estate assets are lawfully distributed.
- If the deceased was in debt, the probate process provides a brief window for creditors to file a claim. This results in the ability for creditors to be paid what they are owed – and for the heirs to gain peace of mind. Once the brief window for filing claims has passed, the family can move forward with confidence knowing that they do not have to worry about any new claims.
The Cons
While there are certainly benefits, probate does have its drawbacks. These can include:
- Probate can be lengthy – taking several months to a year to complete. This time will involve court proceedings, paperwork, etc.
- Assets will not be distributed until probate is complete. This means that heirs/beneficiaries that need immediate relief/access to their inheritance may face issues.
- Probate is a public process, which means items that go through probate go on the public record and become public knowledge.
- Probate can be costly, and those costs are generally deducted from the value of the estate.
- Probate can be complicated and stressful. This, along with all of the cons listed above, highlight the utility of making the probate process run as smoothly as possible for you, and mitigating the need for it to the extent possible through thoughtful estate planning.
Contact Suncoast Civil Law
A skilled Sarasota wills and probate lawyer at Suncoast Civil Law can help you navigate through your own probate issues, and help to build an estate plan that protects your assets. Contact our office today to begin speaking with our experienced team.
Sources:
leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0731/0731.html
floridabar.org/public/consumer/pamphlet026/