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 financial institution could be named to serve as trustee. But, if the estate is small, a financial 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 and settles the trust without court supervision. On the other hand, when the property is titled just in the decedent’s name without any beneficiaries, probate will be required. A will by itself does not transfer property to the heirs. Probate is needed to access and finally distribute the assets to the heirs.

The word “Probate” essentially means “to prove.” In this process, the Probate Court must be shown that everything is proceeding in accordance with Florida Probate Statutes and 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 beneficiaries’ and the administrator’s perspectives.

 Why probate may be helpful from the beneficiaries’ perspective: With a trust, except initial notification of beneficiaries and 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 and requires that the beneficiaries be provided with information throughout the administration of the estate. For example, the Personal Representative (executor) must file an inventory of the assets with the court and mail a copy to the beneficiaries within 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 beneficiary.

If something is wrong in probate, all a beneficiary has to do is file an objection with the court. But with a trust, if something is wrong or nothing is happening, the beneficiary will have to initiate a legal action. The services of an attorney would be needed to file the lawsuit which could be quite expensive.

Why probate may be helpful from the administrator’s perspective: A trustee is a fiduciary whose responsibilities are set forth in Florida Statutes. He/she is liable for damages resulting from a failure to fulfill these duties. This liability can extend for years after the trustee has made final distribution. In a hostile environment, a trustee should obtain approvals of a final accounting before making final distribution. If a beneficiary refuses to cooperate, it will delay the closing of the estate and distribution to other beneficiaries. The trustee can send a notice to beneficiaries that if they wish to object they must file a lawsuit within six months. In contrast, closure is simple and direct with probate. Beneficiaries are given 30 days to object to the Petition for Discharge and proposed distribution. If no objections are filed, the court enters an Order of Discharge releasing the Personal Representative from further 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 office is located at 239 Harrison Street, Titusville, Florida.


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