To offer our clients clarity and transparency, we have developed this Frequently Asked Questions (FAQ) page. Here, you will discover answers to common queries related to probate administration, estate planning, and our legal services.
If you have specific questions that are not covered here or if you require personalized legal guidance, please do not hesitate to reach out to us. Yanitza Schoonover and our devoted team are ready to assist you at every stage of the process. We appreciate your selection of Schoonover Law Firm as your trusted legal partner.
A will is a legal document that outlines an individual’s wishes for the distribution of their assets and the handling of their estate after their death. It is essential to note that the requirements for creating a valid will can vary from one state to another. Therefore, it is highly recommended that you consult with an attorney in your jurisdiction to discuss the preparation of a Last Will and Testament that complies with the specific laws and regulations applicable in your state. An attorney can provide you with guidance tailored to your unique circumstances and ensure that your will is legally valid and enforceable.
I just moved to Miami from a different state. Do I need a new will made and should I consult with a probate lawyer?
If you have a will that was executed in another state and you have moved to Miami, Florida, it is advisable to consult with a local probate attorney in Miami to review your will. The laws and regulations concerning wills and probate can vary between states, so it is important to ensure that your will is in compliance with Florida state law.
A local attorney can help determine if any updates or changes are necessary to make your will consistent with Florida law. Additionally, having a local attorney can facilitate a smoother probate process in the event of your passing, as they will be familiar with the local probate court procedures and requirements.
Even if you do not have a will, it is still recommended to consult with a probate attorney in Miami to ensure that your estate is properly handled according to Florida law. An attorney can also provide guidance on other essential estate planning documents, such as a power of attorney and living will, to ensure that your wishes are carried out in various circumstances.
In summary, consulting with a local probate attorney in Miami when you have relocated to Florida is a prudent decision, especially if you have any concerns or questions about your estate planning. They can provide you with personalized advice and ensure that your estate planning documents align with the laws and regulations of your new state.
When a person passes away without having a Last Will and Testament, their estate is considered intestate. Intestate succession laws, also known as intestate succession, are the legal provisions in place to determine how the decedent’s assets will be distributed in the absence of a will. These laws designate specific individuals, referred to as heirs, and specify how their shares of the estate are to be distributed.
The exact rules for intestate succession can vary from one jurisdiction to another, as each state may have its own laws governing how assets are distributed when there is no valid will. Typically, spouses, children, and close relatives are given priority as heirs in intestate succession, but the specific order and distribution may differ depending on the state’s laws.
It’s important to note that intestate succession can lead to outcomes that may not align with the decedent’s wishes. To ensure that your assets are distributed according to your preferences, it is advisable to create a valid Last Will and Testament or engage in estate planning with the assistance of an attorney. This allows you to have greater control over how your estate is distributed after your passing.
You are correct, and this is an important aspect of the probate process to address when an heir or beneficiary cannot be located or is missing. When such a situation arises, the Personal Representative or Executor may seek guidance from the court to handle the assets intended for the missing heir or beneficiary.
One common approach is for the Personal Representative or Executor to request court approval to deposit the share designated for the missing individual into the court registry. This ensures that the missing heir or beneficiary’s share is safeguarded until they can be located or until a resolution is reached regarding the distribution of their portion of the estate.
This process helps protect the interests of all parties involved and ensures that the assets are appropriately managed and accounted for, even when an heir or beneficiary is unlocatable.
It’s essential for the Personal Representative or Executor to follow the legal procedures in their jurisdiction and seek court approval when faced with such situations. Legal guidance from an experienced probate attorney can be invaluable in handling these complex matters. Thank you for highlighting this important aspect of the probate process.
There is no specific deadline for initiating the probate process in Florida, and it can indeed be initiated even years or decades after the decedent’s passing. However, it is generally advisable for families not to delay the probate process for an extended period.
One key reason for initiating probate in a timely manner is to prevent potential complications that may arise as time passes. As heirs and beneficiaries of the original decedent pass away or their circumstances change, tracking down all relevant parties and ensuring that the estate is distributed correctly can become increasingly complex.
Additionally, the timely resolution of the estate can provide closure and clarity for all parties involved. It allows for the efficient transfer of assets to the rightful heirs and beneficiaries, reducing the likelihood of disputes or challenges in the future.
While there is no strict deadline, it is generally in the best interests of the estate and its beneficiaries to initiate the probate process in a reasonably timely manner. Consulting with a probate attorney can help families navigate the process effectively and avoid unnecessary delays or complications. Thank you for emphasizing the importance of timely probate proceedings.
A personal representative, also known as an executor when designated in a will, is an individual appointed by the court to manage and oversee the administration of an estate after a person’s passing.
The responsibilities of a personal representative can be complex and entail various legal and financial duties, including asset inventory, debt payment, creditor notification, distribution of assets to beneficiaries, and more. Given the intricacies of this role, it is highly advisable for individuals serving as personal representatives or executors to seek the guidance and counsel of a probate attorney.
A probate attorney can provide valuable assistance by explaining the legal requirements, guiding the personal representative through the probate process, and ensuring that they fulfill their duties in compliance with state laws and regulations. This legal support helps ensure a smoother and more efficient administration of the estate, reducing the potential for errors or disputes.
Consulting with a probate attorney is a prudent step for anyone appointed as a personal representative or executor and can help them navigate their responsibilities with confidence and clarity. Thank you for emphasizing the importance of seeking legal guidance in this role.
You are absolutely correct. Having a will does not eliminate the need for probate; instead, it serves as a legal instrument that guides the probate court in determining how the decedent’s assets should be distributed according to their wishes. The probate process is still required to validate the will, pay off any debts or liabilities, and oversee the proper distribution of assets to the designated beneficiaries or heirs.
In essence, a will is a crucial component of the probate process, as it provides clear instructions for the distribution of the estate and the appointment of an executor or personal representative to carry out these instructions. However, probate is the legal process through which the court ensures that the will is valid and that the decedent’s wishes are followed according to applicable laws.
Thank you for highlighting this important distinction and clarification regarding the role of a will in the probate process.
If there is a will that gives everything to one person, can that person take the will and transfer the assets without going through the probate process?
Having a will does not bypass the probate process; instead, it is a legal document that guides and informs the probate court about the decedent’s wishes for the distribution of their assets. The probate court oversees the validation of the will, pays off any outstanding debts or liabilities, and ensures that the assets are distributed in accordance with the instructions outlined in the will and in compliance with applicable laws.
In essence, a will plays a central role within the probate process, helping to facilitate the organized and lawful distribution of the decedent’s estate. However, probate remains the formal legal process through which these actions are carried out.
Not every decedent’s estate will require the opening of a probate. Whether or not a probate is necessary depends on various factors, including the nature and ownership of the decedent’s assets at the time of their passing.
If a decedent did not have assets in their name at the time of their death or if their assets were structured in a way that allows them to pass directly to designated beneficiaries (e.g., through joint tenancy, trusts, or beneficiary designations), then a formal probate proceeding may not be necessary for those specific assets. These assets typically pass outside of probate, directly to the designated beneficiaries.
However, if the decedent had assets that were solely in their name and do not have designated beneficiaries, or if there are other factors that require court oversight, then a probate proceeding may be necessary to transfer ownership of those assets and resolve any outstanding issues.
The necessity of probate is indeed contingent on the specific circumstances of the decedent’s estate, and it’s essential to consult with an attorney to determine whether probate is required and how to proceed accordingly.
Assets subject to probate are typically those that were solely owned by the decedent at the time of their death. These assets are part of the decedent’s probate estate and may include, but are not limited to:
- Real property (real estate) solely owned by the decedent.
- Bank accounts held solely in the decedent’s name.
- Personal property, such as vehicles, jewelry, and household items, that was solely owned by the decedent.
- Business interests or assets owned solely by the decedent.
These assets generally require probate court oversight to transfer ownership to the designated heirs or beneficiaries. Assets that have joint owners, beneficiaries designated (e.g., life insurance policies, retirement accounts), or are held in trust typically pass outside of probate and directly to the designated individuals.