Probate & Trust Administration

Probate is the process by which a Court determines if a document presented before it is a valid Will or not. Probate is also use when a Decedent dies without a Will.  If the Probate Court finds the Will is valid, then it will supervise the distribution of property according to the terms of the Will.  In Florida, the Decedent may name the Personal Representative in the Will, or absent a Will, the Court may appoint a Personal Representative.  If the Decedent dies intestate or without a Will, the Court will appoint an administrator to supervise the Decedent’s property and its distribution among the beneficiaries. Inheritance Tax and Estate Tax apply to the Probate process.

Trust Administration is the process in which the Trustee manages the property of the Decedent as per the terms of the Trust and for the benefit of the beneficiaries after the death of the Decedent. Trust administrator  notifies all beneficiaries, and they must reply within a stipulated time frame. If the  Trust  has real property, then the Trustee  will take control over the property to handle it as per the Decedent’s wish. Once a real property is handled, the  Trustee  needs to ascertain all other trust assets, such as bank and invest accounts. They will be transferred in the name of the Trustee. The successor Trustee  is required to pay the settlor’s debts and satisfy his or her liabilities. Taxes can be particularly complicated because both estate and income taxes may be owed if the estate is sufficiently large.

The Probate process may be very confusing and frustrating when dealing with the loss of your loved one. It is supervised by the Court and compromises proving the validity of a Will in front of the Judge, gathering and distributing the Decedent’s assets, paying estate expenses, filing and payment of taxes.

Whereas the Trust Administration’s object is to transfer the assets of the Decedent to the Beneficiaries identified in a Trust.   In addition to being less expensive and a quicker distribution, Trust  Administration offers a much greater degree of privacy.

As Probate is a process governed by the Court and its appointed administrator, the Decedent, his or her family members, and/or the Beneficiaries have limited control over the distribution of the assets.  The distribution is mandated by State law if there is no Will.  There are costs and taxes engendered through the Probate process, and it takes a lot of time to sort through sizeable Estates. So, it is advisable to have a ‘Living Trust’ for Estate’s of above-average size as a vehicle to avoid Probate.

Usually, State laws regulate the process of Probate. Eighteen (18) states have fully incorporated the Uniform Probate Code created in 1969 by the American Bar Association and the National Conference on Commissioners on United States Laws.  Florida has “partially” adopted the Uniform Probate Code, and uses a version called the “Florida Probate Code” as it is codified in the Florida Statutes and Constitution.  The Probate Process can be initiated by filing a Petition and all persons “interested” will be contacted about the process.  Then the representative gives notice to the creditors and also pays all taxes and outstanding debts from the Estate if possible.  If there is any dispute about distribution, then it must be raised before the Court.

Probate Litigation has many challenges, such as:

• Challenges to the validity of the Will. 
• Suits challenging the wording or construction of Wills and Trusts. 
• Suits over whether an administrator to be appointed for a Decedent who has died without POA.
• Trust modifications and reformation lawsuits.
• Suits challenging the termination of the Trust as the object of Trust  is impracticable.
• Suits filed by beneficiaries against fiduciary for failing to act by the law or a legal document.

Some property of the Decedent by default passes to the beneficiary without getting into the Probate process. Such properties  are owned by the Decedent, and any joint tenants with right of survivorship,  Trust property. Trust property or property acquired during the marriage will also pass to the Spouse or property passing through contract.

Seldom the best planning even fades when in the time of need. This often occurs when an executor,  Trustee, or agent under a POA fails to abide by  their fiduciary duties. Sometimes also people do fraud or force the owner of the property to sign the documents. But whereas Probate is a process done in Court, and there is no chance of any misconduct by anyone.

There are assets left in  possession of a minor or an incompetent adult who needs Guardianship to help them with the property. In the process of Probate, the Court appoints an administrator who acts as a Guardian until the minor attains the majority and helps the adult incompetent person in looking after the property in the Probate process.

A Probate law attorney or a Trust Administration Attorney will have an in-depth knowledge of the laws applicable to the  transfer of assets after the death of the Decedent. If you hire a lawyer who knows this process, you do not need to do the process yourself.  The lawyer will  have the knowledge process  and particular State laws applicable to the process and the inheritance of your property will be protected.