Probate and Trust Administration FAQ
The lawyers at Sheppard, Brett, Stewart, Hersch & Kinsey PA have assisted clients in administering their wills and trusts since 1924. Our knowledge of the Florida probate and trust administration system is extensive, as we have board certified trusts and estates attorneys working with clients’ families, their financial and tax advisors to ensure that the administration of the will and/or trust is accomplished as quickly and professionally as possible.
Probate and Trust Administration FAQs
What is probate?
Probate is a court process where your will is deposited with the court, the court accepts your will as your last will, and oversees the administration of your estate.
How is my estate administered in probate?
Your personal representative (executor) is appointed. The attorney for the estate works with your personal representative to ensure that all of the legal requirements for administering the estate are satisfied. These requirements include ensuring that all creditors of the estate have been paid, proper tax filings have occurred, that the beneficiaries have received and signed off on accountings, and that the estate is distributed in accordance with the terms of the will.
I heard that wills are not subject to probate?
That is incorrect. All wills are subject to probate. Probate may be avoided if the assets of the deceased had been funded into a Revocable Living Trust or are jointly held with rights of survivorship, but in general, all assets that are in your name individually upon your demise are subject to the probate process.
Then should I put all of my assets in joint name?
In most cases titling all of your assets jointly is not a good idea. First, by doing so you might negate the estate tax savings that could otherwise be accomplished in your planning. Second, titling assets jointly could result in a taxable gift under the federal (and some state) gift tax laws. Third, by placing assets in joint name, you might subject the assets to the creditors of the joint interest holder. Before titling assets in joint name, consult with us.
If I have real property in another state, am I subject to probate in that state?
Yes. Real property must be probated in the state that it is located. So if you own property both here in Florida as well as in another state, it is likely that there will be an “ancillary administration” in that state. Revocable Trusts are used to avoid this possibility.
I heard that probate is expensive?
In many cases probate fees for the personal representative and for the attorney could run as high as six percent (combined) of the value of the probate assets. Additional fees, such as tax return preparer fees, appraisers and other such professionals may add to the cost of performing a probate. Sometimes, however, probate might be a minimal expense. This depends upon the facts and circumstances of each particular case.
How do I avoid probate?
Probate can be avoided with the use of Revocable Living Trusts which are discussed elsewhere on our website.
What are the advantages to probate?
The advantages to probate include the court oversight. In other words, it is harder for an administrator (your personal representative) to “play loose with the rules” while a court is overseeing the entire process. Moreover, probate offers a venue to clear creditors and to hear disputes.
Are Revocable Trusts subject to probate?
No. Assets properly funded into Revocable Living Trusts are not subject to the probate process. Here, your trustee is responsible for many of the same duties that your personal representative would have performed. Under Florida law, a trustee must follow a trust administration procedure before making distribution to the beneficiaries of the trust. While there is no court oversight of this process, failure to follow the law could result in personal liability to the trustee.
What sorts of things are performed during the trust administration?
The trustee is responsible for ensuring that all creditors of the decedent have been identified and paid, that the trust is properly accounted for, that tax returns have been filed and taxes paid, and that the beneficiaries receive the amounts granted to them in accordance with the terms of the trust document.
Does your office assist trustees?
Yes. Just as we assist personal representatives in a probate, we assist trustees of trusts to ensure that all legal requirements have been satisfied. Our job is to make sure that the trust is upheld, and that the trustee does not do anything that would subject to the trustee to liability.
Are Trust Administrations less expensive than probate?
Generally, yes. The Florida statute that governs attorneys fees for trust administrations mandates a twenty five percent (25%) reduction off of the attorneys fee for a probate administration. We work on a case by case basis with our clients in achieving a reasonable attorneys fee commensurate with the work for each file.