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Senior Scene® | January Issue
FOR PEOPLE WITH MEDICARE
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H1019_MKN142G Accepted
When is probate the better way to
settle an Estate?
By Attorney Truman Scarborough
By avoiding the Probate Court process, trusts generally shorten the time of settling an estate. However, there are risks using a trust when the successor trustee does not have the time, has a cavalier attitude, or lacks business savvy. A  nancial institution could be named to serve as trustee. But, if the estate is small, a  nancial institution may not be willing to serve or the fee could be prohibitive. An option is to have the Probate Court supervise the administration of the estate.
With a living trust, the successor trustee has immediate control of assets & settles the trust without court supervi- sion. On the other hand, when property is titled just in the decedent’s name without any bene ciaries, probate will be required. A will by itself does not transfer property to the heirs. Probate is needed to access &  nally distribute the assets to the heirs.
The word “Probate” essentially means “to prove.” In this process the Probate Court must be shown that every- thing is proceeding in accordance with Florida Probate Statutes & Rules. To understand why there are advantages in having the court involved in settling an estate, we should look at the issue from both the bene ciaries’ & the adminis- trator’s perspectives.
Why probate may be helpful from the bene ciaries’ perspective: With a trust, except initial noti cation of bene-  ciaries & annual accountings, the trustee is under few time restraints. On the other hand, the Probate Code sets forth a number of timelines for administering an estate & requires that the bene ciaries be provided with information through- out the administration of the estate. For example, the Per- sonal Representative (executor) must  le an inventory of the assets with the court & mail a copy to the bene ciaries with- in 60 days of appointment. If an estate is not closed in one year, the Personal Representative must explain the reason why to the court. This keeps the process going. Since the probate court automatically enforces these requirements, no action is generally required by a bene ciary.
If something is wrong in probate, all a bene ciary has to do is  le an objection with the court. But with a trust, if something is wrong or nothing is happening, the bene - ciary will have to initiate a legal action. The services of an attorney would be needed to  le the lawsuit which could be quite expensive.
Why probate may be helpful from the administrator’s perspective: A trustee is a  duciary whose responsibilities are set forth in Florida Statutes. He/she is liable for damages resulting from a failure to ful ll these duties. This liability can extend for years after the trustee has made  nal distribution. In a hostile environment, a trustee should obtain approvals of a  nal accounting before making  nal distribution. If a bene ciary refuses to cooperate, it will delay the closing of the estate & distribution to other bene ciaries. The trustee can send a notice to bene ciaries that if they wish to object they must  le a lawsuit within six months. In contrast, closure is simple & direct with probate. Bene ciaries are given 30 days to object to the Petition for Discharge & proposed dis- tribution. If no objections are  led, the court enters an Order of Discharge releasing the Personal Representative from fur- ther liability.
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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