Probate Misconceptions

Throughout my career, I have heard many misconceptions regarding the probate process. Among them include, "if my loved one has a will, I don't need to go through probate"," "it takes years to probate an estate," "I have to pay my loved one's bills", "the state of Florida can take loved one's assets." These are just a few of the common probate misconceptions.

As your lawyer, part of my job is to help you understand your rights and obligations throughout the probate process. Continue reading to dispel yourself of some of these common probate misconceptions.

A Probate Can Take Years to Complete

It shouldn't! In the state of Florida, probate rules require a probate to be completed within one year.  In fact under certain circumstances, it is possible to complete a probate in less than 30 days!  There can be circumstances under which it may take longer than one year.  In such cases, the time to complete can be extended, but only by a court order signed by a judge.

If I have a Will, Probate is Unnecessary

Having a Last Will does not avoid probate, but rather helps facilitate the process. A properly drafted will should list those people (beneficiaries) to whom assets will go upon death. Without a will, Florida law dictates who are the beneficiaries. In either event, a probate is likely necessary.

I am Personally Responsible to Pay Loved One's Debts

Unless you or someone else, during the life of the deceased shared or assumed the responsibility of a debt with your loved one, you are not legally responsible to personally pay any debt of the deceased. This is even true for surviving spouses. Only the estate would be responsible, assuming the creditor has files a claim against the estate.

If I do Nothing, Florida Gets the Assets

There is truth to this statement, though it can take years before this happens. Generally speaking, if nothing is done to claim an asset, it will eventually escheat to the Florida Department of Financial Services, likely ending up in the hands of Florida's Chief Financial Officer and must be claimed within five years. All records regarding unclaimed funds are public records. If there are unclaimed funds, a probate may be necessary to collect them. An experienced lawyer can answer your questions and explain your rights to these funds.