Understanding Probate – Why People Go to Great Lengths to Avoid It

Probate administration is the legal process of transferring a deceased persons assets to their heirs or beneficiaries. In Florida, there are three types of probate administration: summary administration, formal administration, and disposition without administration. Each type of administration has its own specific requirements and procedures.  Probate Attorney Michelangelo Mortellaro of Mortellaro Law reviews the three types of probate administration in Florida. He can also answer more questions about probate administration and planning ahead to avoid probate in a confidential consultation. Contact Mortellaro Law to schedule a free initial consultation today. Summary Administration | Tampa Probate AttorneySummary administration is the simplest and quickest form of probate administration. It is available when the value of the estate, excluding exempt property and homestead property, is less than $75,000 or when the decedent has been dead for more than two years. In summary administration, the court issues an order distributing the assets of the estate directly to the beneficiaries. There is no need for a personal representative to be appointed, and the process can be completed in as little as a few weeks. A summary administration is not the best option if the decedent has creditors or is likely to have creditors. However, if the creditors and amounts owed are known, the person filing for a summary administration can pay the outstanding debts before filing. You may also arrange for paying the outstanding debts within your petition for a summary administration. What if an unknown creditor files a claim for a debt after a summary administration is opened? If this happens, after verifying the debts authenticity, and if there are sufficient assets in the decedents estate to pay the debt, the petition for summary administration can be amended to arrange for paying the debt. While a summary administration is faster and simpler than a formal administration, you may still need the guidance of a Tampa probate attorney. Issues can arise like unknown creditors that can require legal advice and creating precisely worded documents. Mortellaro Law can provide the advice and guidance you need for a summary probate administration in Florida. Formal AdministrationFormal administration is the most common form of probate administration in Florida. It is required when the value of the estate, excluding exempt property and homestead property, is more than $75,000. Formal administration is also required when the estate includes real property that is not protected by a homestead exemption.In formal administration, a personal representative is appointed by the court to administer the estate. The personal representative is essentially the CEO responsible for a long list of critical tasks, including: Executing the decedents wishes as expressed in the will Locating and notifying beneficiaries of the decedents death Identifying and collecting the assets of the estateEstablishing the current value of estate assets Providing notice of probate so creditors can file claims Verifying and paying the debts and taxes of the estateDistributing the remaining assets to the beneficiariesClosing the estate Formal administration can take several months or even years to complete, depending on the complexity of the estate. A Tampa probate attorney is an essential partner during a formal probate administration. Their expertise in handling probate matters helps this complex process to flow smoothly, and their knowledge of Florida probate law and common mistakes is critical to preventing serious missteps. Disposition Without AdministrationDisposition without administration is only available in limited circumstances. It is used when the value of the estate, excluding exempt property and homestead property, is less than the amount of the funeral expenses and certain other expenses of the estate. In disposition without administration, the person who paid the funeral expenses or other expenses of the estate can file a petition with the court to be reimbursed from the estate. The court will then issue an order directing the payment of the expenses from the estate. Tampa probate attorney Michelangelo Mortellaro can explain more if the estate qualifies for this form of disposition. Get Help from a Tampa Probate AttorneyProbate administration can be a complex and time-consuming process. Understanding the three types of probate administration in Florida can help you determine which type of administration is appropriate for your situation. If you have questions or concerns about probate administration, it is always best to consult with an experienced probate attorney who can guide you through the process and help you achieve the best possible outcome for your situation.Handling probate is typically complicated by the fact that the persons involved have just lost a loved one and are grieving. Emotions and questions can cause confusion and uncertainty. Tampa Probate Attorney Michelangelo Mortellaro is an experienced and compassionate advocate who cares about his clients. Contact Mortellaro Law in today and ask for a FREE consultation to get advice about your next steps.

Generally, most people are familiar with the term probate. They know that it has something to do with Wills and happens after someone dies. However, what I have found in my 27 years as a practicing attorney, is that it is quite often a mysterious term and that there are many misconceptions about what the probate process actually is and what it entails.Often, I have clients tell me that they want to have a Will so that they can avoid probate. The reality is, the only way that a Will is effective is if it is submitted for probate. Probate is just the general term used to describe the whole process that happens after an individual dies so that someone can be appointed to wrap up the affairs of the decedent. If theres a Will, whomever is named as the executor or personal representative, is formally recognized by the court as the person authorized to handle the affairs of the estate, such as, paying bills and distributing property on behalf of the estate. If there is no Will, but there are assets to be distributed, someone such as a spouse or child can apply to be appointed as the personal representative of the estate to do the same things as if there was a Will appointing an executor or personal representative. However, instead of relying upon the Will for a determination of how the property is distributed, the distribution will be based upon Florida intestate law.Countless times, I have been contacted by a family member who has lost a loved one that needs to get access to funds of the decedent to pay funeral bills or just to resolve a life insurance claim or distribute funds in a bank account. Generally, they call me after they have been advised that they do not have the right to access an account at a bank or brokerage firm as they have not been appointed by the court. In that case, they will have to retain an attorney and go through the probate process to be appointed as the personal representative.Probate is one of the unique areas of the law where you generally cannot represent yourself. Sometimes the funds to be accessed may not even exceed the costs to go through the probate process. Therefore, I want to share three simple tips with you that can help you avoid forcing your loved ones to go through the probate process if your assets are limited or, if you have a loved one with limited assets, so you can assist them in planing accordingly.Bank accounts: Sometimes I will meet with family members of the deceased loved one where the only asset is a bank account and the bank account is only in the decedents name. The only way to get access to the funds is to go through the probate process. However, the time delay and the expenses incurred for filing fees and legal fees could simply have been avoided if the person, while alive, named a beneficiary of that account to be paid upon the death of the account holder. If this procedure is followed, instead of having to go through the probate process, the beneficiary of the account merely needs to present a death certificate to the bank to obtain access to funds.Life insurance policies: Generally, life insurance policies name a beneficiary. However, sometimes they name my estate as the beneficiary. If that is the case, in order to get access to the funds, someone must be appointed as the personal representative of the estate to distribute the funds according to a Will, or if there is no Will, then pursuant to Florida intestacy law. A simple way to avoid this is to make sure that your estate is not named as beneficiary under the policy and to review your policies on an annual basis to make sure you have proper beneficiaries named. If a spouse has passed away, then you may want to update the policy to name your children or other beneficiaries such as a nonprofit organization or church. Again, completing a simple change of beneficiary form is much easier than forcing your family to have to go through the probate process if your life insurance policy is your only asset.Brokerage accounts: I am often surprised that clients are unaware of the opportunity to name beneficiaries on their brokerage accounts. Quite often I have senior clients who may have sold off all their assets and are living in an assisted living facility and their only asset is a brokerage account. Again, because of their failure to name a beneficiary on the account, the family has to go through the expense and time delays associated with probate. If you do have a brokerage account, you should contact your financial adviser to discuss the naming of beneficiaries on that account. Generally you can name an initial beneficiary and contingent beneficiary.Although there are many other probate avoidance mechanisms that can get quite complex, especially when looking to avoid tax consequences for estates over $5 million, quite often these three tips will help a large number of individuals. Plan to review your assets and talk to your parents about their assets and what they have done to avoid the probate process.While its a topic that no one likes to talk about, once someone has passed, its too late and nothing can be done. If you would like a complimentary consultation regarding your current estate planning or if you do not have an estate plan and would like to learn more, please give us a call at 941-206-3700 to schedule an appointment or to request our FREE Special Report on Five Tips to Avoid a Family Tragedy

 Coping with the loss of a loved one is difficult. We hope this information will help you focus on what you need to do and what you may wish to delegate to friends and family. This brochure will provide you with some basic information on what you may need to know in the first few days following a death. You should establish an early relationship with your attorney to assure that all matters are properly addressed. Seeking your attorneys advice before you act may avoid more costly legal services later.Take Care against Unethical PersonsIn the period following the loss of a loved one, be careful before accepting any telephone or mail solicitation. Carefully scrutinize invoices for validity, as it is possible to receive fraudulent invoices. Avoid lifestyle changes for a period to allow for reflection on how the loss will affect the surviving family and friends.Avoid Immediate Collection of BenefitsAvoid transferring title to assets or making claims as a beneficiary until considering whether either a tax or non-tax reason exists for refusing to receive an asset. Even though the account executive wants to be helpful, you may lose an important tax advantage if you accept an asset. An attorney can help you find the best approach.Veterans Benefits and Social SecurityThe mortuary may assist you with the paperwork for both VA and Social Security benefits. For information on VA benefits, call the nearest VA listing for Benefits Information and Assistance.  For Social Security benefits, call the Social Security Administration immediately. Call (800) 772-1213. Be prepared to identify the deceaseds: relationship to you Social Security or VA claim number date of birth date of death place of death surviving spouse or next of kin medical history that bears on whether the death is service related or notIf you do not know the VA number, then provide: service number dates of active serviceYour call will stop the monthly payments. Usually, the VA will automatically withdraw any payments made via direct deposit after the date of death. If this does not happen, you must return the check for the month of death.Social Security monthly benefits are available to the surviving spouse and to children under 18 and certain disabled children. Benefits include a lump sum death benefit. Ask for the Social Security Survivors brochure.Veterans benefits may be available to the surviving spouse. Benefits may include a lump sum death benefit; if death was service connected, a continuing monthly payment to the surviving spouse, and financial assistance with funeral expenses and cemetery plot, or burial in a national cemetery.  Ask for the Federal Benefits for Veterans and Dependents publication.Our office has helped many grieving families and friends with the difficult matters that need to be handled after a loved one's death.  We understand the pain of the loss can make these matters extremely stressful and we try to assist in a way that alleviates some of the pressure.