ISSUE #2
Understanding Probate

Probate is a court-supervised process that makes sure the instructions in your Will are followed. As you plan your final affairs, it is important to have a basic understanding of the probate process. The information and terminology provided below will vary from state to state, so make sure you check with your attorney about the process in your state.

1. Petition for Probate — The process is started when a Petition for Probate is filed with the Clerk of Circuit Court in your county of residence. The original Will, a death certificate and a filing fee are submitted with the petition. Your attorney can handle this filing for your family when the time comes.

2.Probating Your Will — The first step in the process is proving that your Will is legal and valid. This is normally a routine step, especially if you have left a self-provingWill, which your attorney can provide for you. If you leave no Will, your state’s intestacy law will govern the distribution of your assets, using a standard formula.

3. Probate Assets — The probate process deals only with the probate estate, which consists of those assets that are covered by your Will. It does not include any property that is owned jointly with rights of survivorship, nor does it include any assets that pass by beneficiary designation, such as IRAs, life insurance, annuities and payable-on-death accounts. Assets owned by a trust are also excluded from probate.

4. Probating Your Estate — Once your will is admitted, the judge appoints a personal representative (sometimes called an executor). The judge will also issue letters of administration that authorize your personal representative to conduct business on behalf of your estate. The job of the personal representative is to make an inventory of your assets, pay any remaining bills and distribute your assets according to your Will.

5. Your Personal Representative — You may name your personal representative in your Will. This is usually a close, trusted family member. Discuss this with that person ahead of time. It is a large responsibility, and some people are reluctant to serve. You should also name an alternate personal representative, in case your primary personal representative is unable to serve. If you name a family member as personal representative, he or she will generally require assistance from a lawyer during the probate process.

6. Notice to Creditors — One of the first responsibilities of your personal representative is to post a public notice to creditors in the local newspaper. This notice gives all creditors a deadline for presenting claims against the estate. One of the benefits of the probate process is that it places a firm deadline on creditors. If they miss that deadline, they may not collect any debts from the estate.

7. Notice of Administration — The personal representative attempts to locate all creditors and beneficiaries and notifies each of them of the estate administration and the deadlines for filing claims or objections. The personal representative is also responsible for defending the estate against improper claims and objections.

8. Probate Costs — Your estate will pay court fees and attorney fees for the probate process. In some states, state law sets limits or suggests guidelines for what fees an attorney may charge for handling a probate, based on the size of the estate. Your personal representative is also entitled to a fee, but that fee is often waived when the personal representative is a family member.

9. Estate Administration — The primary work of the personal representative is to manage all of the transactions of the estate, such as paying bills and taxes and then distributing the assets to the beneficiaries named in the Will. Once this work has been completed and accepted by the beneficiaries, the personal representative closes the estate and provides a full accounting to the court. This process usually takes about a year, which can be a considerable delay for the family and charitable beneficiaries. This is why many people try to pass most of their assets outside of probate.

This is just a brief overview of some important aspects of the probate process. Make sure you obtain professional assistance from your attorney. The process of preparing a Will and navigating the probate process should always include professional legal help.

This publication has been prepared as an educational resource to help the reader identify areas of potential concern. The publisher is not engaged in rendering legal, accounting or other professional services. The information contained in this publication should not be acted upon without first obtaining the advice of a professional advisor. 2004 © Florida Philanthropic Advisors, LLC. Material may not be used without permission.