The Probate Mainspring

People too often are surprised to learn that someone must open a probate proceeding in order to recover the assets payable to the children or other beneficiaries of a loved one who dies. An even greater surprise is that someone must pay a lawyer and wait from 90 days to 2 years or longer before the court closes the probate action and issues an order to distribute assets to those entitled to them.

Questions often asked by a potential probate client is "What caused the need for probate and how could it have been avoided?" followed by "How much does probate cost?" The attorney's answers often baffle and dishearten beneficiaries whose first response is, "Why must I pay to receive what I am already entitled to?" Because beneficiaries did not anticipate paying attorney and court costs to recover their inheritance, momentary anger can surface towards the deceased for failing to look out for their children or other beneficiaries before their death.

Simply put, the mainspring for opening a probate occurs when a person over the age of 18 years of age dies owning assets having failed to prepare a living trust or other legal documents that could have avoided probate. If the deceased had only a last will and testament, or no will at all, called intestate, the need for a probate proceeding is probable. Anger directed toward the deceased is triggered by beneficiaries learning that probate could have been avoided altogether had the deceased engaged qualified legal representation. Unfortunately, when considering estate planning, many people believe they cannot afford an attorney and pay as little as they can to minimize expenses. Others live in a mythical world believing they are wiser than the probate law itself and need no legal assistance or advice whatsoever, acquiring such beliefs through hearsay from friends and acquaintances.

Also, what about the cost for probate? It varies from state to state. In Florida, according to the Florida Probate Code, attorneys are entitled to fees presumed reasonable often totaling up to 3% of the total assets of the deceased plus additional fees for any extraordinary services such as contesting a will, audits, reviewing and advising on tax returns, and dealings with real property as pertains to mortgages, title, deed transfers and more.

Once the anger subsides and the necessity of probate becomes inevitable, beneficiaries should hire an experienced probate attorney as quickly as possible to settle the estate of the deceased. Waiting could result in beneficiaries losing a portion or the entire amount of assets left by their deceased loved one.