Common Misconceptions About Probate

Advantage Attorney • Feb 06, 2023

When it comes to probate, there are a lot of misconceptions floating around. Probate can be a confusing and overwhelming process, so it’s no wonder that there are so many myths about it. Whether you are creating an estate plan or were appointed to serve as the personal representative of someone else’s estate, you need to understand how the probate process works.

Our  probate attorneys  at Veliz Katz Law can clear up some of the most common misconceptions about probate to ensure that you can separate fact from fiction. From their office in Maitland, Florida, David W. Veliz and Norberto S. Katz serve clients throughout Central Florida, including Winter Park, Maitland, Orlando and Kissimmee.

Top Eight Misconceptions About Probate

Let’s dispel some of the most common misconceptions about probate:

  1. If I leave behind a will, my estate won’t go through probate . This is one of the most common misconceptions about probate. Many people believe that if they have a will in place, their estate will automatically bypass probate court. However, this is not always the case. Even if you have a will, your estate may still need to go through probate if the value of your assets exceeds a certain amount.
  1. Probate means that the state gets all my assets . Another common misconception about probate is that the state will automatically take all of your assets once you die. This is simply not true. Probate is the legal process of distributing your assets after you die. Probate does not automatically mean that the state will take all of your assets, even if you die without a will in place. If you do not leave behind a will, your assets will be distributed to heirs according to your state’s laws of intestate succession.
  1. It is not possible to avoid or minimize probate . The reality is that there are ways to avoid or minimize probate. For example, you can use a revocable living trust to transfer property outside of probate. You can also set up beneficiary designations on your accounts, and they will pass directly to your named beneficiaries without going through probate. There are other methods, such as gifting assets during life and transferring real estate ownership in joint tenancy with the right of survivorship.  Estate planning attorneys  can help you identify which strategies might be best for your individual situation.
  1. The probate process will take years to finalize . Many people believe the probate process is always long and drawn out, but this is usually not the case. The majority of probate cases are resolved within six to twelve months. In some cases, the process may take longer if there is a dispute over the estate or if the estate is complex. However, in most cases, the process does not take years to finalize.
  1. All of your assets must go through probate when you pass away . That isn’t necessarily true. Some types of assets are exempt from the probate process entirely because they don’t need court involvement for transfer upon death (e.g., retirement accounts with designated beneficiaries). Assets held in joint tenancy with the right of survivorship automatically pass to the surviving owner(s) without going through probate as well.
  1. Estate taxes will eat up all the inheritance I leave for my family . Yes, when someone dies, their estate could be subject to estate taxes under federal law. However, most estates are too small to be subject to federal estate taxes. According to the Internal Revenue Service (IRS), federal estate tax applies if the deceased individual’s assets are worth $12.92 million or more.
  1. Probate is a routine and simple process . Probate is not always quick and easy. It depends on the complexity of the estate and whether there are any disputes among beneficiaries or creditors. The more complicated an estate, the longer the process may take. It’s important to note that some states have simplified procedures for small estates, but even then, it’s still necessary to prepare documents, go to court hearings (in some states), pay fees and taxes, transfer property titles, etc., which all take time and effort.
  1. I don’t need an attorney to go through the probate process . It’s true that you are not required to have an attorney to go through the probate process. However, it’s highly recommended that you hire an attorney. An experienced probate attorney can help you navigate the legal complexities of probate and ensure that everything is done correctly and in a timely manner.

Probate can be a confusing and overwhelming process, but it’s essential to separate fact from fiction when it comes to this legal process. Ultimately, talking with an experienced attorney who specializes in estate planning law will help determine what steps need to be taken in order for heirs or beneficiaries to receive their inheritances quickly and efficiently upon one’s passing away.

Veliz Katz Law Can Help

With careful planning, much of the confusion surrounding probate can be avoided altogether – leaving more time for family members and friends to grieve without having to worry about legal complexities involving one’s final wishes after his/her death. Learn more about the probate process during a free consultation with our attorneys at Veliz Katz Law. Contact our office today for a free case review.

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