3 Important Steps to Take Before Hiring a Probate Attorney

3 Important Steps to Take Before Hiring a Probate Attorney in Jacksonville

The purpose of this article is to answer the flood of questions you probably have because you had a loved one just pass away.

Someone may have already told you that you’ll need to hire a probate attorney and go to court.

Maybe that’s not true.

This article will shed light on whether or not you need to go to a probate attorney after the death of your family member.  I will also cover what you’ll need to do before you meet with a probate attorney.

I’m going to explain the three important steps you should take before you hire a probate attorney in Jacksonville.  (Because some people might jump the gun when probate is not necessary.)

  1. Deal with legal and financial questions you may be facing at the funeral home,
  2. What exactly needs to go on with “the reading of the will.”
  3. The data you are going to need to collect regardless of whether or not probate is necessary.

Let’s begin.

If you are a visual or auditory learner, then you might enjoy this video…

By: Kellen Bryant, Probate Attorney

 

Step #1: Probate Related Tasks at the Funeral Home

Hopefully, the funeral home has been prepaid. A lot of times, the funeral home will not provide any services without being paid.

Here’s how the funeral home is paid:

  • If you have a prepaid funeral contract, you want to go to that particular funeral home holding the prepaid funeral contract.

 

  • If you have available liquid funds because you have a joint account, that’s a good place to pay for the funeral home.

 

  • Some funeral homes will work out arrangements with you if you have a life insurance policy or you can show them that you’re “stuck” because you cannot access the funds at the bank.

How many death certificates should you order?

Usually, the amount of death certificates is dependent on the amount of assets and debt accounts.

There’s no general rule of thumb, but maybe you should order 8 to 12. You can always get more, but it’s a pain to get more, and it doesn’t hurt to get six long form, six short form.

Note that the long form has the cause of death on it. The short form does not.

The funeral home typically should notify your loved one’s income sources.

Is the funeral home going to contact Social Security? Are they going to contact VA? Usually, you would be the one to contact the private pensions.

If someone does not contact your loved one’s income sources immediately, there could be a little hassle about returning funds.

For example, if your loved one dies on the 30th of the month and Social Security is not notified, and the Social Security payment comes in on the first of the month or the next month. Then, once Social Security is aware that somebody has passed away, then you will need to return that payment to Social Security.

Social security needs to be notified immediately because they’re going to get their money, and they’re going to find out your loved one is deceased one way, shape, form or another.

Like this Article? Download Your FREE Florida Probate Checklist and Worksheet

Have all the tasks in this article listed plus organize yourself!

Click here to access your Florida Probate Checklist and Worksheet

 

Step #2:  What’s this that TV tells me about Probate Attorneys and the “The Reading of the Will?”

The reading of the will is a myth.

Probate Attorney Reading of the Will

There’s no official reading of the will in how things work. The term is a product of TV shows and movies. The reading of the will is a myth.

“Who gets what” is dependent on how your loved one’s accounts were set up… whether or not there was a:

  • Joint owner
  • Beneficiary, or
  • Trust.

If there are none of these three items present on an account, then the account was held “individually.”

We will talk about that more in just a bit.

Nonetheless, you need to find the original will.

The original will is what counts.

If you think that there are people are out there that will be unhappy about the will, be careful. A disinherited person left out or left short under the last will and testament may want to destroy the will. You should then file that at the clerk of court in the probate department.

Have the deceased person’s Social Security number and date of death with you when you file the original will for safe-keeping at the courthouse.

Make a photocopy of the last will (and any codicils) so you can have it accessible to you or have it available for a probate attorney.

The primary thing you’re looking for inside a will is who is the personal representative.

That’s the term in Florida for the executor or executrix. The personal representative is the person that’s in charge of the estate and handling and administering the estate. Personal representative and executor are the same things.

If you’re reading this, then it’s probably you who is named personal representative.

Usually in most wills, there will be a section of the nomination of the personal representative and so forth, and it will say as follows:

“My daughter, Susie Jones, will be my personal representative. If Susie Jones does not survive me, then my son, Davie Jones, will be the successor personal representative.”  So if Susie is deceased in my example, then Davie is going to be in charge of the estate.

Now a word on who gets what…

I suggest caution when telling people if they’re getting something, unless it’s clear, and everyone gets along just dandy. Sometimes Florida law may yield a strange result on the “who gets what” part.

In some cases, you might want to hold back on the “who gets what” talk with family because legal events may change things.

You don’t want to get somebody’s hopes up one way, shape, form or another.

Step #3: Collecting the Right Information for Estate Administration

The person named as personal representative finds out whether or not he or she should hire a probate attorney.

Now we’re going to do some data collecting.

  • You’re looking at mom or dad’s papers, important papers, safety deposit box, fireproof box, a place where they keep their important papers, maybe certain desks at the house.

 

  • You’re going to try to look for bank statements, tax statements, tax returns, and figure out where they held assets because it might not be readily apparent from your first search.

 

  • You might have to dig even deeper and hunt it down by finding a tax return and seeing who the CPA was for your loved one.

If you have an asset that’s producing income, you should be claiming it on your tax return and the CPA should know about the existence of an asset or not.

The CPA maybe even know the history of that asset, whether or not a certain particular stock was sold previously, or a piece of property has been sold. Those types of things are very helpful, looking at tax returns and so forth.

If your loved one is still getting statements in the mail, you might be stuck with just waiting on the postal service to see what statements roll in.

You can look at the property records in the city where your loved one may have lived or owned property, whether it’s the property appraisers’ websites in Florida or the public records in Florida.

Each county has each, where you can look up information regarding whether or not somebody owns real estate.

When you have all your data, the key is who owned the asset?

  • Are there joint owners?
  • Can you tell if there’s beneficiaries?

In those cases with joint owners, beneficiaries, or the existence of a trust, you will not need probate. The main exception to this rules is minor children (under 18 years old).

If a minor child is a beneficiary, a guardianship may be required to be set up in the probate court.

If there’s a trust, you might want to go to a probate attorney to help figure out how to make the trust work and do everything right. For a trust, it might be as simple as one meeting, and you take care of it with a revocable trust.

 

Like this Article? Download Your FREE Florida Probate Checklist and Worksheet

Have all the tasks in this article listed plus organize yourself!

Click here to access your Florida Probate Checklist and Worksheet

 

Getting Assets to a Beneficiary When a Probate Attorney is Not Required

Common assets we’re going to cover:

  • Bank accounts with joint owner or “POD” designation
  • Life insurance
  • Car
  • Stuff in the house

If a probate attorney is not needed then, you’re going to send in your life insurance claims. Look online or call the company on the life insurance statements look for the telephone menu option “submit a claim.” You’re going to need the death certificates for this task.

For accounts, some people may leave one open. But it is a good idea to close out joint accounts with the deceased’s name.

You’ll want to get the car title transferred according to the will (or to heirs if there is no will). Go to the tax collector’s office to get the title changed. Have the title registration, death certificate and a photocopy of the will if there is one. You’re going to have to get a specific form at the tax collector’s office to change title.

Personal items are usually handled in a round-robin sort of way with all the named beneficiaries in the will. Don’t do this if you think a probate is needed or the personal items in the house are more than $10,000 all together.

Surviving Spouse should Plan His or Her Estate to Avoid Probate in the Future

The surviving spouse needs to consider getting his or her estate plan up-to-date or making an estate plan.

When there’s a couple, most accounts are held jointly. So probate will not be required when one spouse passes away.

But if that surviving spouse passes away, then a probate will be required if there is no trust in place, or the beneficiaries are not set up correctly.

Even if there’s no probate needed, you’re going to want to look at the surviving spouse’s existing estate plan.

Dealing with Debts and Liabilities of the Deceased

Another helpful suggestion is to notify credit bureaus of someone’s death. You can get a pulled credit report. See if there are any outstanding debts and notify the credit bureaus of someone’s death, so there’s no identity theft or someone trying to take out credit on your deceased loved one’s name.

Consider talking to your accountant/tax preparer about filing a final tax return, so the IRS knows not to expect taxes under a certain Social Security number because this person has passed away.

When is a Probate Attorney Required?

A probate attorney is needed when there’s only one name on an account or an asset, such as real estate.

If you go into a bank and say…

“Hey. My mom has died. Here’s her death certificate. Here’s a photocopy of the will,”

The banker will call their bank office compliance and then he or she will say…

“Oh, you’re going to need to get letters of administration or small estate affidavit or summary administration,”

That means the bank is not going to give you access to that money. The bank will be waiting for a probate court order. That means you need to go to probate. The probate attorney gets the letters of administration from the probate court.

Another reason probate is going to be required if the house is only in the name of the deceased person.

You may have power of attorney. However, a durable power of attorney no longer works after somebody passes away. If the house is in the name of the deceased person, then you cannot sell the house without going to the probate court with an attorney.

You can list it for sale and, in a lot of cases; people do list their house if their loved one is deceased.

When the title company runs the titles report though, they’ll see that the house is in the name of your deceased loved one’s name. Then the title company is going to make you go to the probate court to figure out the actual owner of the house in order to go to closing.

Essentially, the probate proceedings transfer title to the deceased person’s loved ones according to his or her last will and testament or, if there’s no will, according to laws of Florida intestate.

Then the closing can go from there.

Assets without a beneficiary or joint owner will have to go to the probate court with an attorney.

That sometimes happens if mom or dad bought a life insurance policy and named the other spouse as beneficiary and did not name a contingent beneficiary. That means life insurance policy had no beneficiaries. The policy will pay out to the estate of your loved on.

So you need to look for assets without a beneficiary or joint owner, a house without a joint owner. The bank locks down the account. That’s when probate is required.

Typical Probate Attorney Fees in Jacksonville, Florida

If you need to hire a probate attorney, there is a probate attorney fee schedule considered under Florida law to be reasonable.

Florida Probate Attorneys Fees

This schedule is the rule of thumb of what is reasonable, and fees can change below or above these figures.

Probate attorney fees are higher if there is fighting between beneficiaries or the assets “are a mess.”

Fees are lower in the case that there is maybe only one account, which needs to go to probate and everyone involved gets along.

For the smaller estates, a flat $1,500 fee to the probate attorney is fairly standard.

Larger estates above $1,000,000 will be at a percentage of the estate a lot of the time.

The court filing costs are between $250 and $400, depending on the size of the assets in the estate. Additional publication and court copy fees run between $150 – $250.

You can find out from the probate attorney if you’re facing the type of estate could be subject to a flat fee or an hourly fee.

This schedule under Florida law will give you a general rule of thumb about what to pay for your attorneys fees for probate.

Conclusion – If  You’re Looking to Hire a Probate Attorney in Jacksonville…

Make sure the funeral home is paid and you have enough death certificates.

Find the original will or figure out which beneficiary will be the personal representative in charge of handling the estate.

Find out the nature of the deceased’s accounts. If the accounts or real estate are only in the name of the deceased, then you’re going to need to go to a probate attorney.

If you want to help on the contents of this article and would like a printable worksheet and checklist, then I have prepared one for you that you can download and follow along.

Click here to request your FREE Probate Checklist and Workbook.

At the end of the checklist, you’ll figure out whether or not you need an attorney, and you will have a worksheet that you can work through on tracking your loved one’s assets, whether or not you need probate, who you should call for certain things, and who might be entitled to certain assets.

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Kellen Bryant

Kellen Bryant is an estate planning and elder law attorney practicing law in Jacksonville, Florida. A native of Jacksonville, Kellen graduated with honors from both Stetson Law School and FSU. Kellen has previously worked for judges and a large law firm . Kellen is currently a member of NAELA, Florida Bar Elder Law Section, and the Florida chapter of NAELA. Kellen is the author of many educational legal guides, which can be found at www.kellenbryantlaw.com.