Common Probate Problems

Common Probate Problems

In the ideal world, when a loved one passes away, you’d deposit his or her valid will with the court and sail through probate—which would end with all assets quickly distributed according to the person’s wishes.

But problems sometimes creep into the process, adding unexpected issues and delays.

Here are some common monkey wrenches that can turn up during the probate process:

  • Someone challenges the will. Whether they’re cut out entirely or simply feel they’re not getting a fair deal, anyone can sue in court to invalidate the will, alleging that the person wasn’t competent when he or she signed it, or even that a newer will exists and must be found. (Fortunately, getting a judge to go along with this is a longshot.) Although this doesn’t happen, when it does, it can add a great deal of time and money to the process. Sometimes, it pays to negotiate with the person challenging the will to try to avoid a drawn-out court battle.
  • The person named as personal representative either doesn’t want to or is ineligible to serve.  Shepherding an estate through the probate process is time-consuming. Occasionally, the person named as PR decides they don’t want to do it (even though they are compensated from the proceeds of the estate). Even more frequently, especially in South Florida where people have good friends in the state where they used to live, the person named in the will as PR doesn’t fit within Florida guidelines, which says a PR can live outside of Florida only if he or she is a relative. (Read more about the responsibilities of a PR here.) In these cases, the attorney has to go to court to get someone else appointed.
  • The PR has trouble finding all the assets. Whether it’s a safety deposit box no one can locate or questions about whether all bank and stock accounts have been identified, questions can arise about whether the PR has found all of the assets. This is even more likely now that people get statements from banks and brokers emailed to them; previously, the PR could watch the mail to see what comes to the decedent.
  • Not everyone wants to sell the home. The parents leave their home to their three children equally; but only two of them want to sell. This scenario has played out in my practice more times than I can count. While the PR can sign a listing agreement and, with the judge’s okay, sell the home, this is often a tricky emotional situation. (Homestead property in Florida falls outside the probate.) In one recent case, one of the grown children was living in the home and threatened not to move out even if it were sold. These situations require careful negotiations between all parties.
  • The PR doesn’t do his or her job properly. The court calls the PR a “fiduciary,” which means the law requires him or her to carefully manage the financial assets. If other beneficiaries don’t believe the person is doing so, they may challenge the PR and make a damage claim against him or her. It is incumbent on the PR to take this responsibility seriously, and to keep other beneficiaries informed as the process goes on.

If you would like to speak with an experienced probate attorney in South Florida, contact the Law Office of Gary Landau for a FREE legal consultation at 954-979-6566 or by email. Attorney Gary Landau personally returns all calls and emails to him.

What are the Responsibilities of a Personal Representative?

Responsibilities of a Personal RepresentativeOther states call them “executors” (or, ridiculously, for women, “executrix”), but in Florida they’re known as personal representatives (PR). That’s the person who, in a formal probate administration proceeding is charged by the court with satisfying the steps needed to distribute a deceased person’s assets.

The duties of a personal representative are carried out in accordance with Florida probate law. In Florida, the PR can be a person (as is most common), but it can also be a bank or private entity. Personal representatives are typically named in a person’s will, but if the named PR is unwilling or unable to serve (for example, a non-relative who does not live in Florida is not allowed to serve, even if the person’s will names them), one is appointed by the court. Florida law allows a PR to collect 3 percent of the estate’s probate assets as a fee for their work.

Here are some of the things a personal representative is charged with doing:

  • Identifying and securing all the assets of the estate. Bank accounts, stock mutual funds, property, cars, cash…. The PR’s job is to find and value of all assets that will become part of the probated estate.
  • Identifying creditors and paying valid claims while objecting to invalid ones. Working with a probate attorney, the PR sends a “Notice to Creditors” to everyone who may be owed money by the estate, then pays those claims from the estate’s bank account (specially opened for this purpose). If claims are made that are not valid, the PR can challenge them.
  • Filing tax returns and paying any taxes that may owed. While most estates fall under the roughly $5-million threshold for paying a federal estate tax, a final tax return still needs to be prepared and filed and regular income and other taxes paid for the final tax year of the person’s life.
  • Distributing assets to all beneficiaries. Once all the debts have been paid, the PR works with the attorney to distribute all assets according to the person’s will (or, if there is no valid will, Florida law).
  • Closing the probate estate. As their last task, the PR finalizes the legal “closing” of the estate and the estate’s bank account.

The personal representative is one piece of a complex process of a formal probate administration. Working with an experienced probate attorney can help guide you through the process. The Law Office of Gary Landau has been handling probates across the state of Florida for more than 20 years. Contact us by phone at 954-979-6566 or by email for a FREE consultation. Attorney Gary Landau personally returns all calls and emails to him.

“My Parent Died Without a Will. What Should I Do?”

The legal word is “intestate”–which means a person has passed away without leaving a valid will. Florida probate law is very specific about how property and money are passed to living heirs when there is no will. (And it doesn’t always correspond with what you know your parent would want, which is why I encourage everyone to have a will that is properly drafted.)

 

The Florida Probate Code determines who inherits your parent’s probatable estate (homestead property–the person’s primary residence, is treated separately under the law). It’s kind of complex, depending on the makeup of the remaining family:

 

  • Your living parent inherits everything if he/she is the legal spouse and has no other children who are not the children of the deceased parent (say, from a prior marriage).
  • You and your biological siblings inherit everything equally if your deceased parent doesn’t have a living spouse.
  • You and your siblings inherit half and the living spouse inherits the other half if the living spouse is not your (and your siblings’) biological parent.
  • Similarly, you and your siblings inherit half and the living spouse inherits the other half if that surviving spouse has other children who are not the children of your deceased parent.
  • If one or more of your siblings who is the legal child of the deceased parent died before the parent, but has living children (i.e., your parent’s grandchildren), those kids inherit their parent’s share.

 

For children to inherit under the laws of intestacy in Florida, they must be legal children. This includes: biological children, even if they were not raised by the deceased parent; legally adopted kids; children conceived by your deceased parent even if they were not born until after their death; and kids born outside of marriage, assuming they have proven paternity or the deceased parent acknowledged paternity during their lifetime. Children who are not American citizens or don’t live in this country are still entitled to their share. However, foster children, step children, and biological children legally adopted by another person are not.

 

To help you understand your legal rights if a relative passes away in the state of Florida, or to draft or update your own will, contact the Law Office of Gary Landau for a FREE legal consultation at 954-979-6566 or by email. Attorney Gary Landau personally returns all calls and emails to him.

 

Is It Necessary to Try to Avoid Probate?

Clients sometimes come to me hoping to set up their estate in a way that will avoid probate after their death. Occasionally, especially if they have limited assets, this can easily be done, such as by created a lady bird deed for a home that adds another person to the deed. Often, though, especially with more complex assets, this would typically involve creating  a revocable living trust. While there are some people who can benefit from doing this, usually people’s fears of probate are way overblown.

the pros and cons of avoiding probate

Here are the major concerns I typically hear and why you shouldn’t worry about them:

  1. Taxes. While there is a federal  estate tax on the books, it applies only to estates worth more than $5 million. If your assets don’t total that amount, your heirs will not pay taxes on what they inherit from you.
  2. Privacy. It is true that wills deposited with the court are public property while trusts don’t need to be filed. In theory, then, anyone can see who you have left your estate to. In reality, though, unless you are a famous person it’s unlikely anyone is going to bother trudging to the courthouse to peek at your file.
  3. Fees. There are costs involved with a probate–court costs, attorney fees, and the like. But setting up a revocable living trust also has fees attached to it, and they are much more than the cost of drafting a will.

Here are the biggest downsides to trying to avoid probate with a revocable living trust:

  1. Documentation. The original trust is not filed with the court, and so can easily be lost over the years. Without that document, proving a person is the successor trustee (and entitled to the deceased person’s assets) is impossible. I have had several clients over the years who swear they are the successor trustee, but since the original trust had been drafted decades earlier and no one could find it they were never able to locate it.
  2. Trust not properly “funded.” After creating the trust, and after each asset purchase thereafter, the trustee’s home, cars, bank accounts, stocks and other assets must be placed into the trust. So many times a trustee passes away and one or more assets is discovered to have remained in their own name. That asset can only be disposed of by–you guessed it–starting a probate.

This is not to say no one should create a revocable living trust. But in my experience most people should instead create a valid will (with an attorney, so there are no mistakes that can’t be corrected after you pass on) and not worry about their heirs needing to go through the process of probate.

For a FREE consultation about a probate or a will, contact the Law Office of Gary M. Landau by email or call 954-979-6566. Attorney Gary Landau personally returns all calls to him.

How To Contest A Will In The State of Florida

contesting-a-willWhile it’s hard to get a probate judge to overturn a will (or a portion of a will) in the state of Florida, it is possible. You have to provide enough evidence to prove your case, and you must launch a challenge before the probate proceeding is completed (in the first 3 months of being notified that the will has been filed; potentially longer if you were not legally notified).

Here are some reasons you and your lawyer might prevail:

    • The will wasn’t executed properly. This includes things like having an improper signature or not being witnessed by the required two people.
    • Lack of testamentary capacity. The court considers this to be different from general mental capacity. A person could be hallucinating for days but if they become lucid for an afternoon, as long as they understand what they are signing and to whom their possessions will be going, they can execute a will. This was reportedly the claim used years ago in the estate battle of the Doors’ Jim Morrison, when it was argued that the legendary singer was under the influence of narcotics when he wrote his will. (That will contest was ultimately settled out of court.)
    • Undue influence. I’ve had several adult children try to come to meetings with their parents and me when their folks  were deciding how to divide assets in their will. I always make the children leave. That way, there is no possible cause for a sibling who gets less or nothing to cry foul. To successfully mount a challenge this way, you have to prove that the influencer was involved in decisions regarding the will and that he or she benefits personally from the way it was drafted.
    • Fraud. Was the decedent tricked into signing the will? Or perhaps he was lied to in a way that caused him to make decision that would have been different absent the lie? Both are grounds for setting a will aside.

To prevent your own will from being successfully challenged, be sure it is drafted properly by a competent attorney. Although Florida law allows you to create a will on your own, I  have seen too many cases of do-it-yourself wills thrown out by the court.

If you need your will drafted or have questions about a current probate, contact the Law Office of Gary Landau by email, or call at 954-979-6566, for a FREE consultation. Attorney Gary Landau personally returns all calls to him.