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Your Parent Didn’t Have A Will: What Should You Do Now?

Your Parent Didn’t Have A Will: What Should You Do Now?

  • Make a diligent search for a will. Look through your parent’s records and file cabinets, talk to their close friends and other relatives, ask their accountant and any lawyer they worked with in the past. Look around the house for business cards of lawyers, accountants or financial advisors. They may have gone to a lawyer and not told you about the appointment. I cannot tell you how many times a client has told me, “I have a will, but it’s old.” Wills are not like cartons of milk; they don’t have expiration dates. If you have found an “old will” – and it was not revoked by your parent – it is the will that will be probated.
  • Check to see if mom or dad had a safe deposit box. The will may be in the safe deposit box. This poses a particular challenge because the authority to get into the safe deposit box may be in the box. If you are fortunate, mom or dad will have named you as a signatory on the box and you will be able to access it. If not, you will have to adhere to your state’s laws in order to gain access to the box. Some states allow you to bring a special petition to gain access to the box. Other states will require a full probate petition in order to gain access.
  • Gather a list of your parent’s assets, financial statements and tax returns. It is particularly helpful to have financial statements covering the date of death. If mom died on March 19, you should gather up all of the financial statements that cover the entire month of March. Date of death values of assets will be needed for probate and estate tax returns. Financial statements will often indicate ownership of the account. If there was a joint owner of the account, the ownership will most likely pass to the surviving joint owner and probate of that asset may not be needed. The same is true if the account had a “POD” – Payable on Death – listed. The asset gets paid on death to that named person listed and avoids probate.
  • Make an appointment with a lawyer. This can be your parent’s lawyer, your lawyer or a new lawyer you have been referred to by a trusted advisor. Just because dad used his old college buddy for his legal needs does not mean that you have to use that same lawyer to administer his estate. If you are the person in charge of dealing with the estate, you can hire whatever attorney you like to advise you. I caution you not to use the lawyer who helped with the purchase of your home or handled your best friend’s divorce to assist with the estate. Hire someone who has experience with trusts and estates law. You wouldn’t go to a dermatologist to perform your heart surgery. Likewise, you should not hire a real estate lawyer to administer your mother’s estate.

The lawyer will review the information you have gathered and will advise you what next steps are needed. At this stage, a lawyer is generally looking to see if probate will be necessary. If all of the assets were owned jointly with a surviving joint owner or had a named beneficiary, there may be no need to probate. In most states, the ownership passes by operation of law to the surviving joint owner or the named beneficiary. This is often the case with life insurance, IRA’s and 401K’s. If, however, there is an asset in mom’s name alone, such as a home or a bank account, probate will be needed for that asset. Since there is no will, you will need to bring a petition under the laws of the state where mom died (or where she owned assets) asking the court to appoint you as Personal Representative (or Administrator) of the estate. This is called an intestate estate, which means mom or dad died without a will. The beneficiaries will then be determined by state law, which dictates who inherits the money.

Of course, most of this can be avoided if your parent creates an estate plan, including a will, before they die. Unfortunately, just like we didn’t always listen to their advice when we were growing up, they often do not listen to ours.
Read more related articles here:


Also, read one of our previous Blogs at:

What Does it Mean to Die Intestate?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.


Probate in FL

Is An Attorney Required For Probate In Florida?

Is An Attorney Required For Probate In Florida?   Yes, in almost all cases you will need a Florida Probate Lawyer. For all but the simplest estates, Florida law requires that the personal representative of an estate hire a probate attorney to guide him or her through the process. While hiring an attorney might seem like an unnecessary burden, an attorney should help make the probate process as efficient as possible. Except for “disposition without administration” (very small estates) and those estates in which the executor (personal representative) is the sole beneficiary, Florida law requires the assistance of an attorney. Even when an estate lawyer is not required, formal administration has so many technical rules and pitfalls that it can be very frustrating for the non-lawyer. Florida’s system is too complex for most personal representatives to follow without guidance, and the courts are not set up or staffed to provide probate legal assistance. In addition, judges in the state require probate documents to meet certain specifications and wording, the forms for which are not available online or even in most libraries. In other words, executors in Florida cannot count on the court clerk’s office to guide them through, as they might in some other states.

Why Can’t I Just Record The Will To Change The Title To My Parent’s Property In Florida?

Title insurance underwriters in Florida generally do not recognize a recorded will as sufficient to convey title, and for good reasons.   First, there is no way for those title insurers to know that the recorded will was valid and was the final will of the deceased. Second, there are situations in which the property cannot pass according to the Will due to the nature of the property, estate creditors, or other reasons.

Can An Estate Be Administered With A Missing Heir?

In many cases, yes, the estate could be administered. A missing heir is one who, although not shown on the title, has inherited a portion of the title due to the death of an owner, but who cannot now be located. Florida law has a useful provision under a formal probate administration which allows the personal representative to deposit the share of a missing heir into the registry of the court after the property has been sold.

A missing heir is much different from a missing owner of record. If the missing person is an owner of record and has not died or been declared dead by a court, the probate code does not apply and the situation is more complicated. A conservator may be needed.

Do All Estates In Florida Have To Go Through “Full” Probate?

No, very small estates without real property may qualify for “disposition without administration” and some estates may qualify for summary administration, which is a faster and cheaper form of probate administration. Because Florida’s homestead definition allows unlimited value (but not unlimited acreage), some estates with very expensive homestead property (principal residence), but little else, can qualify for summary administration. Also, if the deceased has been dead for more than two years, the estate can be handled in summary administration.

After A Property Owner Dies, Can His Or Her Power Of Attorney (POA) Be Used?

No. It has no “power” after the maker (the property owner) dies. Without meaning any disrespect, a good way to remember this is to recall that death turns a POA into a “DOA.”

Is Summary Administration Always The Better Way When Available?

Sometimes it is not practical to use a summary administration even if it is an option. Examples:

  • The Will leaves the property to a large number of beneficiaries, each of whom would have to sign the contract to sell as well as the deed and other closing papers.
  • If some of the beneficiaries are minors, guardianships may have to be set up and maintained until the minor reaches adulthood, but in a formal estate, the personal representative may be able to avoid that through the Florida Uniform Transfers to Minors Act.
  • Sometimes, the whereabouts of one or more of the beneficiaries are unknown. Formal probate administration can accommodate a missing heir. Summary administration cannot.
  • If one of the beneficiaries refuses to cooperate with the other owners, formal administration may be needed in order to sell the property. The alternative is a “partition” lawsuit by one or more owners, the costs of which are likely to exceed formal probate costs.

If a formal administration is needed after the second anniversary of death, certain steps related to creditors are no longer required and for that reason, the fees and costs may not be that much more expensive than a summary administration.

Is It Ever “Too Late” To Start Probate?

No, there is no deadline to open a probate in Florida, and we have handled estates 50 years after a person’s death. If family members have paid the property taxes so that no tax deeds are granted, probate is often feasible for decades. However, there is a practical limit in some family situations, because over enough time there may be several probate administrations needed due to the deaths of the initial heirs and even children of the heirs. Also, sometimes family members lose track of each other so that the current generation does not know enough about the estate of a deceased heir to know who the heirs may be. Probate can be started with minimal information, but it must be through a more expensive formal administration.

Do I Need To Personally Appear In Florida To Probate An Estate?

No, not usually for probate. Unless a dispute requires a hearing, neither the personal representative nor the estate attorney will actually go to court in Florida. There is no “reading of the will” like you see in old movies. Everything is done by mail, email, phone, and internet.

Read more related articles at:

Florida Bar: Consumer Pamphlet: Probate in Florida

The Problem With Probate In America And Ways To Fix It

Also, read one of our previous Blogs at:

Estate Planning Secrets: How To Avoid Probate

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

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