Probate Law

Death. It’s a topic that makes a lot of people feel uncomfortable. Yet, none of us will escape this world alive. We will all face death. Quite often the first death we encounter is the death of a loved one such as a parent. In the aftermath of death, there can be many questions.

Just recently, my best friend from high school called me after her father passed away unexpectedly. She had lots of questions about his estate, including his financial assets, his house, and his personal possessions. She was so overwhelmed and just did not know where to begin. This is where a good attorney can help you out. Her father had done some planning prior to his death, and upon his death, several of his financial assets passed into a trust. Distribution of those assets was governed by the trust and did not become part of his estate upon his death. However, not all of his assets were in a trust.

Shortly before his death he had moved from Illinois to Florida, and purchased a house in Florida. The house was not in the trust, and therefore, became an asset of the estate upon her father’s death. My friend did not know what to do with the house or the personal property inside the house. She was hoping to avoid having to do a “probate.”

Probate is the legal process wherein the estate of a decedent is administered and requires filing paperwork with the court. While there are some circumstances where probate can be avoided, if the decedent owned any “real property”, which is the legal term for “ground with dirt”, as I like to tell my clients, a probate must be opened. A piece of real property is always titled/deeded in the name of the owner, and upon death, the only way to transfer that title/deed is through a Personal Representative’s deed. Whomever is appointed Personal Representative has the legal authority to act in the decedent’s behalf and can complete the paperwork necessary to legally transfer the title/deed to the new owner of the property, whether that is through a sale of the property or a gift of the property. Probate has to be opened and paperwork filed with the Court for an appointment of a Personal Representative.

My friend was able to find a probate attorney in Florida and has begun the process of probating her father’s estate in order to sell the house. Next month I will address the issue of her father’s personal property and what happens with the personal property upon death.