By: Barry E. Haimo, Esq.
May 19, 2015
How Does Property Transfer After Death?
HAIMO: At your point of death, your property will be pooled together and called your probate estate. Through the probate proceedings, your property will be devised to the appropriate beneficiary or beneficiaries. This is determined either via will or trust or other estate planning vehicle. Or, alternatively, if you didn’t do any estate planning, the state of Florida will designate your beneficiaries for you, and ultimately your estate will be devised to them.
Probate refers to the legal process of settling a deceased person’s affairs. After you pass away, assets owned in your name alone will likely go through estate administration (or probate) before your loved ones can access them unless you have utilized specific estate planning tools. Click here to watch a short introductory video about probate.
The Probate Process
The probate process is long and often complex. However, we can provide a brief overview of the steps of this process. Though it is conceptually simple, keep in mind that each step can take weeks or even months at a time. On average, the probate process takes somewhere between twelve to eighteen months. Click here to view a Prezi presentation on the probate process.
Opening the Estate. The probate process begins after you pass away. Your heirs must retain a probate attorney, who will open up an estate with the probate court. At this point, an individual will be appointed as a personal representative for the estate by the court unless you have specifically designated someone in your validly executed last will and testament.
The personal representative (sometimes called an executor in other states) will work with the attorney to oversee the entire probate process. He or she has a number of important duties. First is to take an inventory of your assets and locating a validly executed last will and testament (if the location is not immediately known). This individual must also notify any heirs and beneficiaries that the estate has been opened.
Settling Debts. After taking stock of all your assets, the personal representative must file an inventory with the probate court. He or she must also notify creditors of your pending estate.
Before the assets in your estate can be distributed to your heirs, the personal representative must ensure that any legitimate claims from creditors are satisfied or barred from recovery. Any relevant taxes will also be paid with funds from the estate. A portion of the estate may have to be liquidated in order to settle any taxes and open accounts you might have with creditors. In this respect, think back to the case of Joe Robbie, the former owner of the Miami Dolphins. He failed to adequately plan his estate, which resulted in him having to sell the team to pay estate taxes.
Distributing the Assets. After your obligations are settled, the personal representative files a motion with the court to begin distributing the remaining assets in the estate.
If you have a valid will, this will be used as a guide during the distribution process. Once the personal representative receives approval to do so, he or she may begin distributing the assets as per the instructions in your will.
If you have no will, your property will be distributed according to Florida’s laws of intestate succession. Essentially, the Florida probate court will pass on your estate to any remaining family members, giving precedence to your surviving spouse and/or your descendants. This statutory distribution scheme can be disastrous to blended families who treat a significant other’s children as their own though they are not biological descendants of the deceased.
The probate process can be a long, expensive, and stressful one for your loved ones. Estate planning can help you simplify this process, and ensure your assets pass safely into the hands of your family and friends. While you cannot predict the future, you can certainly prepare for it. Call us to get started today.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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