Usually a person would name someone they trust as an estate executor. The executor is responsible for fair distribution of the deceased person’s assets in accordance with their wish & will. It is not required by the estate executor to file the probate documents if someone dies. But then you will be restricted in terms of what you can do and what you can’t. If the deceased person has a joint ownership or a named beneficiary or has nominated the beneficiary as TOD/POD on their assets, bank accounts etc. probate can be avoided.
Here are few scenarios where probate may be required:
1) Can’t Pass Legal Asset Titles: When the decedent owns a property like Car, Home, Retirement Account, etc., and the person dies without a will then without the probate process or the court approval, it is not possible to pass the legal asset title to the successor.
2) Beneficiaries Can Put Legal Claims against You (the executor): It is difficult to distribute the assets lawfully without the probate process if the deceased hasn’t prepared a will before dying. It needs to go through the intestate succession laws of the state. The beneficiaries can sue you because they might not get what they legally deserve.
3) Mentally incapable when the will was written: If the deceased was mentally incapable while making the will which can be proven in court, then it is better to file for probate. Probate will address such type of issues.
4) Creditors’ Claims / Insolvent Estates: The deceased person may have unpaid bills & debt. Filing for probate will give lesser time for creditors to file a claim against you. A creditor’s claim can also be rejected by the executor if filed late. Moreover, if the deceased person owes more in debt than his estate is worth, probate is not required. You can simply file the will & walkaway.
If you have any questions related to probate, then we can help you with that. Call Florida probate attorney, Michael Heider, at 888-483-5040 for a free consultation.