by Estate Planning Attorney Nydia Menendez
When someone passes away, their estate consists of everything left behind, including all the deceased person’s assets. Many people think a Will is the key to planning and leaving their affairs in order for when the time comes. But that is not the case. In fact, Wills are very ineffective because they must be administered by a court through the probate process.
Simply stated, when someone dies, with or without a Will and nothing more, the dreadful probate process is required. There are several reasons why this should be avoided.
In a Will you can nominate a Personal Representative to manage the affairs of the estate. The court will usually appoint that person who was named in the Will, and honor the wishes of the decedent relative to distributions as outlined in the Will.
If no Will exists, the court will appoint a Personal Representative and determine distributions, with both of these critical matters handled simply according to the guidelines set in the Statutes.
Either way, the Personal Representative must file an inventory of the assets in the estate, and pay creditors. The court will resolve any disputes, and transfer title to the assets to the rightful heirs or beneficiaries.
Probate is expensive! The cost of probate could range between six to ten percent of the total estate value. There are court fees, attorney fees, accounting fees, conservator fees and publication fees, all of which adds up to considerable sums of money. For example, for an estate valued at one million dollars, the probate fees would be approximately $80,000, leaving less money in the estate for distributions to the beneficiaries.
Lack of Privacy
Additionally, probate is open to the public, meaning that nosy neighbors and friends can find out details about your assets, your private life, and how much you left to your beneficiaries. In contrast, by having a Trust in place, you can keep your affairs private and your loved ones out of court.
Duration and Additional Probates
Another downside of probate is that it takes a really long time – on average, no less than six months to get resolved. During this period, the assets are frozen while the probate process is taking place, which means your heirs are not in control. And if there is property in another state, a probate proceeding generally known as “Ancillary Probate” will be required in that state as well.
Family Involved in Court Proceedings
Whether an untitled asset, an asset with beneficiary designations like life insurance and retirement accounts, or titled assets like real estate, the use of a Will and nothing more will most likely not accomplish all that you would want or need, largely because of the horrors of probate. Equally disappointing is the fact that if you have a Will, you took steps to plan, and probably thought you were all set, though you are not.
Instead, your family faces uncertainty, disruption, and the additional unexpected expenses of having to go through the judicial probate process. Certainly, you would not want them to face all that, especially at such a painful moment in their lives. The good news is that with proper planning probate can, and should, be avoided. There is definitely a better way!
How Can This Nightmare be Avoided?
If you want to learn more about how Estate Planning applies to you and how to avoid the probate process, we invite you to call our office at (954) 963-7220 to speak with a member of the Menéndez Law Firm who can help you navigate the creation of your Estate Plan. Additionally, you may want to watch the video series on our YouTube channel, where we cover a variety of relevant topics and frequently asked questions. You can also join us for the next live Wills, Trusts and Estate Planning webinar on Zoom by registering at no charge on our website www.menendezlawfirm.com
Estate Planning Attorney
Menéndez Law Firm
2699 Stirling Road, Suite B200
Fort Lauderdale, FL 33312
Tel.: (954) 963-7220
Fax: (954) 963-7232