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Debunking Common Myths About the Probate Process

The average probate process costs an average of 3% to 8% of the estate’s assets. Most people know that the probate process is costly without knowing exactly how much. It’s one of the myths about the need for an estate to go to probate. Plenty of other myths about probate give the process an overall bad reputation. 

Most people know that if you haven’t done any estate planning, your affairs are likely going to probate when you die. But what does that mean exactly? While many people have general knowledge and even negative connotations associated with probate, they don’t really know much about the probate process. 

Read on to learn more about probate in Florida and the myths associated with it.

What Is Probate?

Probate is the process of finalizing an estate when a person dies. When the deceased leaves assets that need distribution, this happens through the probate process. For example, those assets can include bank accounts, investments, and real estate. 

Probate happens whether the deceased has a will or doesn’t. The process ensures that the administration of the will is handled correctly. If there isn’t a will, then probate makes decisions on behalf of the estate. 

The probate will work to confirm the will’s validity and identify the executor named in the will. The probate process varies in time and cost, depending on the will and how specific it is with directions.

Florida Probate Jurisdiction

Florida probate law comes from Chapters 731-735 of the Florida Statutes. While these statutes specify state law, separate counties in Florida have their own rules. These county rules must be followed before an estate can move through the courts in Florida. 

Like many states, Florida’s probable statutes are complex. They’re written to protect both creditors and beneficiaries.

Some believe that courts work to favor creditors. The courts work hard to ensure that any creditor gets paid from the estate. Beneficiaries are welcome to appear in probate, too.

Because many people feel intimidated by probate, they struggle with the process. This is often why many people engage a probate lawyer to guide them through the process. 

Property and Assets in Probate

Any property owned by the deceased can be subject to the probate process.

There’s one exception to this probate law: if an asset comes when a named beneficiary or rights of survivorship is a part of it would be exempt.

For example, a life insurance policy comes with a named beneficiary. If the deceased is named a beneficiary in the policy, the assets are exempt from probate. Other examples include a bank or retirement account with a pay-on-death designation.

Real estate often is considered property with rights of survivorship. This means that if the property is co-owned (like with a spouse), then the co-owner would take on full ownership upon the death of the other co-owner.

In Florida, even if a piece of property purchased by a couple doesn’t designate rights of survivorship, the property will go to the surviving spouse through “tenancy by the entirety.”

Common Myths Connected to Probate

Many loved ones facing probate can feel overwhelmed and fearful of the probate process, especially after the emotional experience of losing their loved one. 

Some of that fear also comes with some preconceived myths about the probate process. Let’s take a closer look at some of those myths about probate. 

A Will Means No Probate

One of the most common myths that come up is about wills and probate. Many believe having a will means you can skip the probate process altogether. 

Even with a will, an estate must go through probate. A will acts as a roadmap to guide the probate process. 

Many estate planners take advantage of a loophole that allows them to avoid probate if a living trust is also in place. To avoid probate, the assets must be named to the trust. 

Government Gets All Assets With No Will

When a person dies without a will, it’s called intestacy. The common myth is that in intestacy, all estates go to the government through probate. 

When there’s an intestacy, any assets go through probate and are eventually distributed to the deceased heirs. The issue with not having a will is that those assets may go to someone who might not want to get them. 

With a will, the probate process has guidelines to follow with the distribution of any assets. 

Probate Takes Years

Another common belief is that the process can take a very long time when affairs are sent to probate. To be sure, it’s not likely any probate process is a snap. 

Yet, the probate process can go much quicker with a will and careful estate planning. Often when a will and a probate lawyer are working to guide the process, it can be handled in several months versus a year or longer. 

Debts Disappear at Death

There’s also a misguided notion that when a person dies, their debts die with them. In fact, for people with significant debt, it might be why they avoid estate planning. They hope to avoid saddling their loved ones with their debts. 

Unfortunately, this is a big myth connected to probate. Remember, there’s a focus in Florida probate for any debts paid before assets are paid out. The probate process will examine both assets and debts. 

The probate court will tally up debts and use any assets to pay them before allowing an executor to distribute assets, with or without a will. 

Understanding the Probate Process

Many believe the probate process to be daunting. It can be without proper estate planning.

When you work with an estate planning attorney, create a will, and outline your wishes upon your death, probate has a roadmap to follow when closing out your estate. If you have questions about creating a will or are facing probate for a loved one, we can help. Shoot us a message using our online contact form, or get in touch at  (305) 921-9665.

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