Legal Zoom defines probate as the legal process through which a deceased person’s estate is properly distributed to heirs and designated beneficiaries and any debt owed to creditors is paid off. In general, probate property is distributed according to the decedent’s last will and testament, if there is one, or according to state law if no will exists.
In some cases, the probate process will be simple enough not to require a lawyer. But in many cases, experienced legal input will be the best solution to navigating the sometimes-complex laws surrounding wills, estates, and the probate process. Keep reading for some examples of when it’s best to get a probate lawyer involved.
1: If Assets Can’t Be Transferred Without Probate
Ideally, all assets can be structured to be transferable to their new owners without probate court. But sometimes assets don’t have a named beneficiary and things get complicated. Generally, probate is necessary for assets owned solely in the name of the deceased person—for example, real estate or a car titled in that person’s name alone. In addition, probate might be needed for a share of property owned as “tenants in common”—for example, the deceased person’s interest in a warehouse owned as an investment with another individual. Please note that Florida does have a special statute for transfer of title to motor vehicles where probate is not otherwise necessary.
2: If the Estate in Question is Considered “Large.”
The State of Florida considers any estate over $75,000 to be a large estate and therefore to require formal probate administration. Smaller estates may qualify for an affidavit process or a simple court procedure known as Summary Administration that helps avoid or minimize the probate process, but larger estates are more complicated.
3: If the Estate Includes a Business or Commercial Property
Assets that include a business, commercial real estate, or any other asset that requires special ongoing handling will add a layer of legal complexity. You’ll probably want to consult experts if you need to manage, appraise, or sell a business. Nolo warns that these jobs aren’t for amateurs.
4: If Family Members or Other Beneficiaries Aren’t in Agreement
Will contests are rare, but sometimes one or more family members will make things difficult by threatening to sue over the estate. In these instances, Nolo suggests talking to a lawyer immediately. Probate lawsuits have the power to tear families apart at worst, and at best will drain a lot of money from the estate in the process. A lawyer may be able to help you avoid a court battle.
5: If the Estate Can’t Pay Its Debts
If it looks like there won’t be enough money in the estate to pay debts and taxes, get advice before you pay any creditors. It’s not always easy to figure out how to divide the money between creditors. The creditor vetting process in probate can also help weed out inappropriate creditors or invalid debts and to otherwise make sure that estate assets do not go to creditors who have not filed proper claims.
6: If the Estate Owes Either State or Federal Estate Tax.
According to All Law, more than 99% of estates don’t owe federal estate tax, and those estates similarly will not owe Florida estate tax, so this isn’t a common issue in Florida. But sometimes there are additional taxes required for estates that are valued at $1 million or more with property in other states. If you will be responsible for filing an estate tax return with the state where the deceased person lived or owned real estate, you should get legal and tax advice. An estate tax return is not a do-it-yourself job. Even though the estate tax is not a consideration for most estates, income tax determination can be very important and retaining an expert probate lawyer can save many estates considerable dollars, in many cases enough to pay the fee or at least reduce it substantially.
If you need help with the probate process in the Stuart, FL area, we’re here to make it simple and stress-free. We serve treasure coast seniors and those who love them. Get started by calling 772-828-2588 or contacting us online today!
The Estate, Trust, and Elder Law Firm, P.L.
Fort Pierce (Main Location)
2940 S. 25th Street
Fort Pierce, FL 34981
850 NW Federal Highway, #1004
Stuart, FL 34994
Port St. Lucie
1860 S.W. Fountainview Blvd. Suite 100
Port St. Lucie, FL 34986
IRC Chamber of Commerce 1216 21st Street
Vero Beach, FL 32960
402 NW Third St,
Okeechobee, FL 34972