Probate has a bad reputation and is often described as a proceeding that
is to be avoided at all costs. It is true that when someone dies without
an estate plan in place and therefore, by default most of their assets
fall into a probate proceeding, the probate proceeding can be unnecessarily
expensive and time consuming. However, when incorporated into a well designed
estate plan, probate can have a positive role to play.
Probate can be helpful because when someone dies, creditors have two years
to file a claim against the assets of the decedent. This time period can
be reduced from two years to 90 days for most of the decedent's assets
if at least one asset goes through the probate process.
Many times family members are sure that their loved one had no unpaid bills
and therefore creditors are not an issue. However, people who die as a
result of an illness can have numerous medical bills that are not covered
by insurance and people who die in car accidents can have a lawsuit filed
against their estate. Without a probate proceeding, the question of who
could be a creditor can remain unanswered for up to two years.
In Florida, if someone dies with a revocable living trust, that trust is
responsible for paying the bills and liabilities of the decedent if there
are not enough assets in the probate estate to pay all the creditors.
Therefore the chance to reduce the creditor claim period from 2 years
to 90 days through the probate proceedings can be beneficial for the trust as well.
Sometimes probate proceedings are as frustrating and unnecessarily expensive
as the worst stories portray them to be however, for people who plan ahead,
a probate proceeding that is used wisely as a part of a comprehensive
estate plan can be a proceeding that helps to bring some much needed certainty
and peace of mind for the loved ones they leave behind.