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Why do some estates take longer to settle? By Attorney Truman Scarborough
The length of time it takes to settle an estate depends on various factors: 1] whether the decedent’s records are accessible and organized; 2] whether the administrator is competentanddiligent;3]whetherthedecedenthasacom- plex distribution plan; 4] whether there are assets like rental real estate or a small business that need to be managed;
5] whether there are disputed creditors’ claims; 6] whether there are complications with the decedent’s taxes; 7] wheth- er there is underlying family hostility; 8] whether the heirs, because of personal marital or creditor problems, do not want an early distribution; 9] whether the estate has to be probated; and 10] whether there is a court challenge.
Bringing the administration of an estate to an early con- clusion is important for several reasons. Primarily, it enables bene ciariestoreceivetheirinheritancesaspromptlyaspos- sible and limits expenses (which tend to go up proportionally with the time and work involved). An open estate also allows unforeseen events to further complicate and delay closing the estate. For example:
1] An estate must remain open until all creditor claims aresettled.Ifacartitledinthedecedent’snameisinanacci- dent, the probate estate must remain open until the issue of liability is resolved.
2] Until the home is sold or transferred to the bene cia- ries: it can be dif cult to obtain homeowner’s insurance; it will lose the homestead tax exemption; and if unoccupied, it is more likely to be vandalized.
3] If a bene ciary dies after the decedent but before receiving his/her inheritance, a probate estate for the de- ceased bene ciary must be opened to receive the gift.
Senior Scene® | April Issue
When a bene ciary survives the decedent, his/her interest is vested (locked in) and must be distributed to that individual. The problem is the law does not allow distribution to a de- ceased individual, so a probate estate must be opened for the deceased bene ciary to receive the inheritance.
In addition to organizing records and selecting a com- petent administrator, one available way to shorten the time to settle an estate is to avoid probate. When a person dies, nooneisempoweredtosignthedecedent’sname.Property just in the decedent’s name without bene ciaries is frozen.
A Power of Attorney does not help, since it is effective only while the creator is living. It is similar to an employer – em- ployee relationship. If an employer goes out of business there are no employees. A Will by itself does not transfer property but works through the probate court process. Ben- e ciaries generally do not receive their inheritance until the end of the formal probate process, approximately six months from the time pleadings are initially  led with the court.
The Revocable Trust is frequently used to avoid probate. WithaTrust,thesuccessortrusteehasimmediatecontrolof the decedent’s assets. It is like a corporation, where if the president dies his successor immediately takes control. No court authorization is required.
With thoughtful planning, the burden on those who set- tle our affairs can be reduced allowing the bene ciaries to receivetheirinheritancewithoutunnecessaryexpensesand delays. Perhaps, one of the best gifts we can leave our heirs is a prompt smooth transfer of assets so they can move on with their lives.
For further information on your estate planning options you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267 - 4770. His of ce is located at 239 Harrison Street, Titusville, Florida. SS
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