When is probate the better way to settle an Estate?



By Attorney Truman Scarborough

Probate is required when the property is titled just in the decedent’s name without any beneficiaries. A will does not automatically transfer property to the heirs. Orders from the Probate Court are needed to access and distribute the assets to the heirs.


In a formal probate a Personal Representative (executor) is appointed by the Court to administer the estate.  When everything runs smoothly, formal probate takes around six months. There are fees and court costs with probate. For estates between $100,000 and $1,000,000, Florida Statutes suggest a fee for ordinary services of 3% for both the Personal Representative and the attorney.


With a living trust, the successor trustee has immediate control of assets and is able to settle the estate without going through the court.  By avoiding the Probate Court process, trusts generally save time and money.


While there are advantages in using a trust, there are risks when: 1] there is a potential for conflicts between the trustee and beneficiaries or 2] 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.


To understand why there may be advantages in going through the longer and more expensive probate process, we need to look at the issues 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 and requires that the beneficiaries be provided with information throughout the administration of the estate. If an estate is not closed in one year, the Personal Representative must explain the reason why to the court. Since the probate court automatically enforces these requirements, no action is generally required by a beneficiary.



With a trust, if something is wrong or nothing is happening, a beneficiary may have to retain an attorney to initiate a separate legal action. In probate on the other hand, if the Personal Representative is not property administering the estate all a beneficiary has to do is file an objection with the probate court.


Why probate may be helpful from the administrator’s perspective:  A trustee is liable for damages resulting from a failure to fulfill his/her duties set forth in the Florida Trust Code. To be released from further responsibility and liability a trustee needs to bring the administration of the trust to a conclusion and obtain releases from the beneficiaries. If a beneficiary refuses to cooperate, it will likely delay settling the trust and distribution to other beneficiaries. The trustee can send a notice to beneficiaries stating 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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