Keep yourself informed

Search
  • Ryan J. Smollar

The Probate Court Process and What Happens There

Updated: Aug 30

What happens in a probate court with a will? When you have a will that clearly states who your beneficiaries are and how your assets should be distributed, you still need probate in Florida. But even if the decedent had no will, probate is still required in Florida to distribute the assets and pay any outstanding bills and taxes. Whether there is a will or not, the probate process is very similar.


Probate is a legally supervised court process that first determines the authenticity of the will. The other steps in the probate process include appointing an executor, locating the decedent’s assets, identifying the creditors, paying off the bills and taxes, and then distributing the estate to the rightful heir(s). The probate court has the legal authority to determine all matters that relate to the estate and wills.


No one can distribute the assets to the beneficiaries without probate.


What is Involved in Probate Court?


A probate court is like any other court in the judicial system except that it deals chiefly with matters like estates, wills, and guardianships. For example, there are times when a will is contested, the validity of the will is in question, or, in some cases, the mental status of the individual who signed the will may come into question.


In such scenarios as the aforementioned, it is the responsibility of the probate court to determine the facts and verify all documents. In every state, there is a probate court; however, even though they all have the same responsibilities, there may be some minor variations in how things are accomplished.


The ultimate role of the probate court is to make sure that the decedent's liens and debts are paid and the remaining assets are distributed to the named beneficiary(ies) in the will. In almost all cases, the probate court will name an executor to represent and manage the estate.


This individual may be a sibling, beneficiary, or may not even be related to the decedent. The role of the executor is to ensure that the will submitted to the court is valid, search all lien holders and creditors, identify all heirs, and even appoint a guardian if there are minor children of the decedent.


What Happens at a Probate Court Hearing?


1. The one thing about the probate process that everyone should know is that it is not a short process and can take anywhere from 4-9 months for even the simplest case. If there are questions about the validity of the will or the beneficiaries do not agree on the distribution of the estate, the process can easily take several years.


2. In Florida, the probate process for the decedent’s estate occurs in the county of his/her primary residence at the time of death. Sometimes if the deceased owned any fixed or immovable assets (e.g., a home) in a different county, then the probate for those assets may take place in the county where the assets are located. This means that probate can take place in different courts in certain cases.


Probate Hearings


In general, the probate court hearings follow a chronological order that includes the following list.


First Hearing


1. The first hearing usually occurs after an official notice of probate is submitted to the probate court. At this initial hearing, the probate judge will officially name an executor for the estate. In many cases, the decedent may have named an executor in the will and the judge may abide by that decision.


If there is no will, the court will usually appoint the executor, who may be the next of kin. For example, the court may decide to appoint the surviving adult child or the spouse, but these individuals are not obligated to serve as an executor. If they decline, the court may appoint another person.


2. Sometimes the court may ask the executor of the will to post a bond. The bond acts as an insurance policy in case the executor commits a serious error (either unintentional or intentional) that financially damages the estate. In some states, a bond is mandatory, but in other states, the beneficiaries can vote to reject the bond necessity.


3. In many cases, the probate process can be streamlined and expedited if the administrator or executor of the will has obtained consent from all the beneficiaries about the probate process. When the heirs or beneficiaries of the will have no questions about the will validity or how the assets should be distributed, this makes probate simple. This lessens the probate court’s oversight, meaning the probate process can be resolved much faster.


4. The first task of the executor is to locate and take possession of the decedent’s assets so that they are protected. This can involve a significant amount of time involving searches to uncover any hidden assets. In general, the executor will look for assets after reviewing tax returns, insurance policies, bank statements, and other relevant documents.


5. If there is real estate involved, the executor must protect it by ensuring that the property taxes, home insurance policy, and mortgage payments are paid. The key is to prevent the property from falling into foreclosure and losing it.


Second Hearing


The second hearing is known as the court confirmation hearing. This usually occurs after the administrator or executor has prepared an itemized listing of the assets, appraised all properties, and identified all the creditors and lien holders. If any assets need to be sold, it is at this time that the court will prove and oversee the sale of the assets (usually real estate) of the deceased.


At this hearing, the executor will reveal any offers for the sale of the assets. In most cases, the probate judge will not interfere with the offers, but if the beneficiaries or the court deems that the offers are too low, the court will agree to a new bidding process. If the executor has a legitimate plan for selling the assets, the judge will usually not interfere.


Final Hearing


The last meeting is where the court will review the executor’s final accounting of the estate and how he or she plans to redistribute the assets. The executor needs to show the value of the estate, the number of creditors and lien holders, the number of beneficiaries, and how much each will be paid.


Further, the court will make an effort to determine whether the executor has made a reasonable effort to contact the creditors and lien holders. After the plan is deemed reasonable, the probate judge will rule to close the probate process and dissolve the estate.


The Last Step


The final step is for the executor to distribute the remaining assets to the beneficiaries as outlined in the probate court process. This is usually only done after the court has granted the executor permission.


What if an Estate is Not Probated?


An estate doesn’t have to be probated. No criminal charges would be brought about by merely not filing probate for an estate. But why would one not want an estate probated? If an estate wasn’t probated, one might assume that the executor might have something to hide. Perhaps the executor would benefit financially if the estate was not probated? Perhaps there were investment losses for which the executor is at fault?


Lawsuits can be filed as a consequence of not probating an estate if there are beneficiaries who would inherit part of the estate. Any creditors can also file a lawsuit if an estate to which they hold claims is not probated. What if an estate is not probated? No one would be able to transfer the title of any assets to another person.


Discover what happens in the probate court with a will or what if an estate is not probated? If you or someone you know needs help with the probate process in Florida, contact Elder Law for lawyers you can trust. Elder Law is a firm whose lawyers are experienced and knowledgeable about Florida probate laws.

29 views0 comments