Legal Services: Probate, Guardianship, Estate Planning, Planning for Incapacity, Living Will, Trust, Health Care Directive, Durable Power of Attorney and Last Will and Testament
Probate Administration Tampa, Clearwater and St. Petersburg
Welcome. Probate Administration is a legal process in the court, whereby ownership of the decedent’s property is legally transferred to the beneficiaries.
The term property, as used in probate, is a broad term that includes anything subject to ownership. It includes homes, land, cash, stocks, IRA’s, 401K’s, brokerage accounts, mutual funds, money market funds, bank accounts, annuities, and life insurance. It also includes tangible property (property that can be touched) like electronics, furniture, tools, artwork, jewelry, etc.
The most important thing to know is that not all assets owned by a decedent pass to beneficiaries by Will and probate. The only property which is subject to probate, are assets which were solely owned by the decedent. Ownership is determined by how the asset is titled. Let’s use a property deed for an example. A deed can be jointly or individually titled. Typical deeds will be titled in the name husband and wife. Only a deed titled in the decedent’s name individually, will pass according to the directive in the Will. Similarly, the title of the bank account or brokerage account determines who owns the asset. For example an account titled jointly in the name of Mr. and Mrs. Smith, would not be a probate asset, but an account titled in Mrs. Smith’s name only, would be subject to probate.
The probate process starts with deciding on who will serve as the personal representative of the estate. In other states, this person is also known as an executor or administrator. Often, a personal representative is nominated in the decedent’s Will. That individual has preference in the appointment, but is not obligated to serve. If there is no nomination in the Will, or the nominated person declines to serve, than a decision will have to be made among family members.
That person, with the assistance of the attorney, will sign a “Petition for Administration” to be filed in the court. A petition is a written request to the judge to sign a written court order. A Petition for Administration asks the court to legally appoint the personal representative. Once appointed, the judge issues “Letters of Administration”, a document, which allow the personal representative, to do all things necessary to pass the property legally to the beneficiaries under a Will.
The personal representative and attorney have the legal obligation to notify creditors (individuals or companies) in writing, of the decedent’s passing. Creditors are individuals that the decedent owed money to, but had not paid at the time of death. Typically creditors are credit card companies, doctors, hospitals, ambulance companies, whose bills are outstanding at the time of death. This required written notification is accomplished by directly mailing a document titled “Notice to Creditors.” The Notice to Creditors” informs the creditor of the decedent’s passing and the name, address and court where the probate case has been opened. The law also requires that this “Notice of Creditors” is published at least twice. As a “fiduciary”, a personal representative has an equal duty to creditors and beneficiaries.
After the creditor has been properly notified by the attorney, they must file a written document in the probate court, known as a “Statement of Claim”. A creditor who does not timely follow this court procedure, loses their legal right to collect the debt from the probate assets.
After expenses and valid creditors are paid, the personal representative is charged with distributing the decedent’s property to the beneficiaries.
Some people compare the process, to administering a small business, whereby assets are collected, debts are paid, legal title is transferred, and distribution to the beneficiaries is accomplished. The probate process is document intensive, but assures fairness in the distribution. It is also designed to be open so that all the beneficiaries and valid creditors know what the assets are, who will receive them and in what proportion. There are many procedures in place to assure that all interested persons receive notice and information about the probate.
All is done with the assistance and direction of the probate attorney, who interfaces with the court to get the required court Orders, which are necessary to complete the job. Once completed, the court issues an Order Discharging the Personal Representative, and the case is closed.
Upon death of a Grantor, the trustee has the fiduciary duty to distribute the assets of the decedent according to the terms of the trust. Being a trustee is a big job. For a lay trustee, many questions arise on the logistics of carrying out the distribution. Typical issues are what debts are owed and should be paid.
Typical questions are:
- How do I find the assets?
- How do I prove the beneficiary received the property?
- What kind of records should I keep?
- Are taxes owed?
- How do I find the beneficiaries?
- How do I terminate the Trust?
- How should assets be titled?
- What if the successor trustee has died?
- Can the trust terms be amended if needed to carry out the intent of the Grantor?
- Can I be paid for my work?
Diane Zuckerman, Esq. can serve as a guide to assist the trustee in answering these types of questions, and in carrying out this difficult job.