This is a very common question, and the answer depends on the specific circumstances. Probate is the court-supervised process of transferring property from a decedent to the persons entitled to receive it, but it’s not the only means of transferring such property. If the decedent owned property jointly with another person and there exists a right of survivorship, then such property passes automatically to the surviving owner without the need for probate. If the decedent owned a bank account that included a “pay on death” (POD) provision, or an investment account that included a “transfer on death” (TOD) provision, then those accounts automatically become the property of the beneficiary named in the provision. Similarly, if the decedent owned an insurance policy with a named beneficiary, then the death benefit would automatically be paid to the beneficiary. In most cases, probate is only necessary when there is no other mechanism in place to transfer a decedent’s property to someone else, but probate may still be advisable to protect a decedent’s homestead from creditors or for several other important purposes. To learn if probate is necessary for your situation, contact McDannold Law today.
The recent passing of basketball great Kobe Bryant is a jarring reminder of just how fragile life really is. Most of us take for granted that we have a long string of tomorrows ahead of us, but such thinking is arrogance. Consider the words of James:
Look here, you who say, “Today or tomorrow we are going to a certain town and will stay there a year. We will do business there and make a profit.” How do you know what your life will be like tomorrow? Your life is like the morning fog — it’s here a little while, then it’s gone. (James 4:13-14, NLT)
The harsh reality is that none of us know which day will be our last, so wisdom dictates that we should prepare for our passing in advance. When Hezekiah, the King of Judah, became gravely ill, the Lord sent the prophet Isaiah to him with a message, saying “Set your affairs in order, for you are going to die.” Unfortunately, most of us are not given such a clear warning.
Maybe that’s why so many people put off creating an estate plan. In a 2019 study by Caring.com, only 40% of adults have a will, living trust, or other testamentary documents. Predictably, the study found that the percentages increased directly with the age of the respondent. What’s surprising, however, is that only 66% of people age 65 and older have a will or a trust. The consequences of failing to plan can sometimes be devastating. Set your affairs in order, for you are going to die.
If you’d like to learn more about creating a will or trust tailored to your family, your property, and your individual circumstances, contact McDannold Law today.
Probate is a court-supervised process for finding and gathering the assets of a deceased person, paying any debts, distributing the remaining assets to beneficiaries, and winding up his or her affairs.
If the decedent had a will, it must be deposited with the clerk of the circuit court within 10 days of death. However, the probate process doesn’t begin until a petition is filed, and the decedent’s will has no legal effect until it is admitted to probate by the court. Whether or not there was a will, probate is required to pass ownership of the decedent’s assets to the persons who are entitled to receive them.
A personal representative, known elsewhere as “executor,” is appointed by the judge to administer the decedent’s probate estate. Serving as personal representative is a responsible job, and mismanagement of the estate can result in personal liability to the beneficiaries. For this reason, it’s important to consult a probate attorney who can provide legal advice to the personal representative and represent him or her throughout the estate proceedings.
Contact McDannold Law to learn more about the probate process.
If you own a home in Florida, you’re probably familiar with the homestead tax exemption that can reduce its assessed value by up to $50,000. You may not realize, however, that Florida’s Constitution provides additional protections for homestead property, and it’s important to understand how these protections affect your estate planning. First, if the owner of the homestead property dies leaving a spouse or a minor child, the owner cannot give the property as a gift in his or her will. An exception allows the homestead to be gifted to the spouse, but only if the owner is not survived by a minor child. Second, the homestead property cannot be forcibly sold to pay the debts of the owner, and the protection from such debts descends to the heirs of the owner. This protection does not apply to mortgages or other liens attached to the homestead property itself. Contact McDannold Law for a free consultation to learn how these important laws may impact your estate plan.