A loved one died: Opening a probate estate
October 23, 2021 - Categories: Legal Articles
It’s that unfortunate time in life when a loved one passes away. Unfortunately, although you’re in mourning you still have some legal duties to your loved ones and yourself assuming your loved one left behind property. Such disbursement of property is called the administration of an estate.
What is the disbursement of an estate?
The disburse an estate or what is legally called “going through probate” is when the assets and debts of your loved one are dealt with after their passing. For example, the person that recently passed or the “descendent” may have some outstanding debts, often medical debts. But often, the descendent also has assets such as life insurance policies. Whatever is left once certain debts are paid is to be disbursed to the decedent’s loved ones, either who are listed in the will or by the Florida law.
Generally, how do you disburse an estate?
Florida has an in-depth procedure for the administration of an estate. Although, there is a general procedure for the administration of an estate, such disbursement can change significantly based upon the actual contents of the estate. But, generally the first step in the administration of the estate is:
To file the will within the court, assuming there is a will. In Florida, you have ten (10) days from the date of death to file the will with the court. If you miss this date though, you are often not terribly affected and an experienced attorney can help guide you along the way.
Next, you must file all the proper paperwork with the court. Such paperwork includes the petition for administration, acceptance as personal representative (assuming you are the personal representative) and an order admitting the will to probate.
It is extremely important to notify anyone who may have an interest in the estate. Once the initial paperwork mentioned in step two has been filed, this is the next crucial step to administering the estate. If you fail to notify all the parties with an interest in the disbursement you may run into liability or delays down the line.
Once everyone has been notified, then the court must issue Letters of Administration. Such letters allow for the personal representative to open an account to hold the funds to be disbursed.
Next, the personal representative must issue the notice to creditors. This is what allows anyone that has a claim on the estate to file it. Such claim could include an outstanding bill. Such notice must be published in the local newspaper we well to give all possible creditors an opportunity to make a claim on the estate. Once the notice of creditors is published in the paper for a three-week period, then the creditors have 30 days to file their claim. If they fail to file such claim, then their possible debt on the estate is waived.
Once this is done, then the personal representative must file the Final Accounting and the Petition to Disburse the Assets. Again, the Final Accounting and Petition to Disburse must be served upon all parties with an interest in the disbursement. Such service can often be accomplished by the use of Certified US Mail with a return receipt.
Next, the assets can be disbursed to the relevant parties, whether it be those inheriting from the estate or creditors.
Finally, the personal representative can file to close the estate.
Are all disbursements the same?
Definitely not. If the many steps above we not complicated enough, there are numerous other factors that come into play for the disbursement of an estate that would alter the process. For example, some people pass away without a will, this is called intestate. This is a bit complicated because it is somewhat like playing a game with less rules. Many times, the will of the passed away informs their loved ones who will administer the estate, if you die intestate, those left behind do not know who should do so. Therefore, if the interested parties cannot agree on the one that is best suited to administer the estate, then the court must decide. Although this is not impossible, it adds time and frustration to the litigation and for the parties involved. Dying intestate is just one of the many factors that can be relevant to the disbursement of an estate.
Why is it important for you to hire an experienced probate attorney?
Most estates are not as simple as they may seem. There are many different factors that come into play when disbursing an estate. In order to avoid any liability or any other issues, it is best to allow a licensed and experience attorney to handle the estate. Additionally, to handle such an estate is a large burden on those involved. An attorney can take this burden off of you in your time of mourning.
Key Questions to Answer:
Question: In what state did your loved one live?
Importance: this will determine where the estate needs to be run through probate.
Question: Did your loved one have a will? Yes or no?
Importance: This will show whether or not the estate is intestate or not. This way we know if we need to read/determine a will or if the estate needs to be disbursed based on the laws of the appropriate state.
Question: When did they pass away?
Importance: We need to know the timelines that are applicable. For example, the will should be filed within 10 days of the death of the decedent. If the will has already been filed then numerous other filing deadlines apply.
Question: If there is no will, then please list all children, siblings, parents, etc.
Importance: we need to know how the estate will disburse. This will indicate the order in which the estate will disburse.
Question: Do you know of any creditors of the estate? Did they have Medicaid?
Importance: this is important in order to estimate how the estate will be disbursed. Additionally, this makes it easier to notify creditors. For example, depending on the age of the decedent, we may need to notify Medicaid regardless.
Question: Do you know of any assets, stocks, life insurance, homes?
Importance: This will help with determine what is in the estate and what needs to be disbursed.
Question: If there is a home, where is it?
Importance: Although this is part of the estate, we still might need to handle the home differently. For example, you may need to have homestead determined based on the state laws in which the decedent resided.
Question: Do you have the addresses of any parties that may have a possible interest?
Importance: We will need this to serve the parties in which have an interest. We will need their addresses and this will save time and money to find them.
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