When people think of the word’s “heirs”, “beneficiaries”, “court”, “probate” they may picture fighting in court or family members arguing. Now sometimes that may be the case, but it’s not as common as you might think. A majority of our cases are actually very peaceful and have been a time where families come together over a time of grief.
In this blog we will cover a few of the most common questions we receive regarding probate including how long probate takes, what Florida probate is, what happens when heirs or beneficiaries disagree and what options are available to them when in disagreement.
What is probate?
Probate is the process of administering a person’s estate after they’ve passed away. If the person passed away with a last will and testament, the probate process will then consist of validating the will, carrying out their wishes, and transferring assets, like a house or money, to that person’s beneficiaries.
Who is a personal representative?
The Personal Representative is the person in charge of administering the estate. This is the party responsible for identifying and securing the assets of the estate, identifying creditors, paying off debts, and distributing the corresponding assets to the beneficiaries or heirs. Basically, this person works with the probate attorney to get the probate done.
Does the personal representative have to accept their role?
The personal representative does not have to accept their role. If they choose to decline, the role will be offered to the next person in line according to Florida law.
How long does Florida probate take?
The time it takes for the probate process to be completed can range from less than a month or up to 9 months. This depends on the type of Florida probate process you be going through. It could either be a Formal Probate Administration, or a Summary Administration which might take less time. But again, it also depends on the complexity of the estate.
Can probate be avoided, and why should it be?
The probate process can cost you both financially and mentally. This is because if the probate case is drawn-out, it may delay the distributions and you will start to dip into the assets that are meant to go to the heirs or beneficiaries. Going through this process can also cause family members to start fighting. Unfortunately, money can bring out the worst in people.
My estate is only worth $30,000. Do I still need to go through the formal probate process?
You may not have to go through a formal probate administration because the estate is valued at less than $75,000 and may be eligible for a Summary Administration. Because this process does involve going to court, we do recommend consulting a Florida probate attorney.
When the beneficiaries are siblings more often than not, they will be fighting over the real estate.
In most cases, real estate is the largest asset in terms of value in a person’s estate. Although most of the cases we see are rather smooth sailing, we do see those cases from time to time that involve family members fighting over real estate left behind.
What are the options for those heirs, or beneficiaries who find themselves in disagreement?
There are a couple of options one could take. One of them being to buy out the other heirs, or beneficiaries’ part. If one of the heirs or beneficiaries is in a position to buy out the other sibling’s part, it may be wise to do so because it may become more expensive and more emotionally draining down the line if it ends up in court.
The other option would be to force the sale of the property or to file a separate lawsuit called a partition action. The personal representative, or one of the beneficiaries can petition to the court to force the sale of the property if all requirements have been met. Although this is a way to force the sale of the property, it still takes time, money, and can be emotionally draining. This is why settling with the other heirs, or beneficiaries is the path usually recommended to take.
If those three options are not feasible, what is there left to do?
Unfortunately, if no one in the family is seeing eye to eye, it may be left to the local probate court to decide. This is when litigation would have to take place. Litigation is when your loved one’s interests have to be fought for in court and even during litigation the courts do encourage family members to resolve it on their own.
To wrap this up; it’ll be okay.
Like we said in the beginning, most probate cases are peaceful and end up working themselves out. But if it does come down to litigation, you need an attorney by your side who is knowledgeable, experienced, and willing to fight for your interests. And if it wasn’t clear to you before, it’s clear to you now – Florida Probate can be complex and overwhelming.
Stivers Law, based out of Miami, Florida, has handled hundreds of probate cases throughout the State of Florida.
If you found this article valuable, we’d love for you to speak with a member of our team to discuss how we can help you through the Florida probate process. Please call us at 305-456-3255 or fill out the Contact Us page and we will contact you right away. And for those who would like to do more research – we have you covered! Download our free guide today titled: “A Love One Has Died – Now What?” to learn more about the Florida probate process.
Thank you for your interest in Stivers Law and we look forward to speaking with you soon.
As a reminder, the information provided on this blog article is only to be used for general informational purposes and not intended to be used as legal advice.
Justin serves as a member of the American Academy of Estate Planning Attorneys (AAEPA), a national organization comprised of legal professionals concentrating on estate planning. As a member of the Academy, he receives ongoing, comprehensive training on modern estate planning techniques.
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