Wills and Real Estate Attorney Alina F. Nunez Address

Alina Nuñez Esq. is a Wills and Real Estate Attorney in Miami.13 years practice: probate law, testaments, real estate law. Call now:(305)962-5929, free consultation. Serving all Miami, Fl.

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Probate Law administration


Probate Law is a process that proves the will of a deceased person is valid, so their property can in due course be retitled or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:


  • Creditors must be notified and legal notices published.
  • Executors of the will must be guided in how and when to distribute assets and how to take creditors' rights into account.
  • A Petition to appoint a personal representative may need to be filed and letters of administration (often referred to as "letters testamentary") issued. A Grant of Letters of Administration can be used as proof that the ‘Administrator' is entitled to handle the assets.
  • Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, the jointly owned property passes automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
  • There are time factors involved in filing and objecting to claims against the estate.
  • There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
  • Real estate or other property may need to be sold to effect a correct distribution of assets pursuant to the will or merely to pay debts.
  • Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
  • Costs of the administration including ordinary taxation such as income tax on interest and property taxation are deducted from assets in the estate before distribution by the executors of the will.
  • Other assets may simply need to be transferred from the deceased to his or her beneficiaries, such as life insurance. Other assets may have pay on death or transfer on death designations, which avoids probate.
  • The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently.


Executor


An executor is a person appointed by a Will to act in respect to the estate of the testator upon his or her death. An executor is the legal personal representative of a deceased person's estate. The appointment of an Executor is only effective following the death of the Will maker. Once he or she has died then the person appointed by the Will as executor should decide very quickly whether or not to accept the position. There is no legal obligation to do so. If they don’t want to act as an Executor they will need to “renounce probate” at the court probate registry.

Executors "step into the shoes" of the deceased and have similar rights and powers to wind up the personal affairs of the decedent. This may include continuing or filing lawsuits to which the decedent was entitled to bring, making claims for wrongful death, paying off creditors, or selling or disposing of assets not particularly gifted in the Will, among others.


Administrator


When a person dies without a Will then the legal personal representative is known as “the Administrator”. This is commonly the closest relative, although that person can renounce their right to be Administrator in which case the right moves to the next closest relative. This often happens when parents or grandparents are first in line to become the Administrator but renounce their rights as they are old, don’t have knowledge of estate law and feel that someone else is better suited to the task.

Appointment of an administrator follows a codified list establishing priority appointees. Classes of persons named higher on the list receive priority of appointment to those lower on the list. Although appointees named in the Will and relatives of the deceased frequently receive priority over all others, creditors of the deceased and 'any other citizen of [that jurisdiction]' may act as an administrator if there is some cognizable reason or relationship to the estate. Alternatively, if no other person qualifies or no other person accepts the appointment, the court will appoint a representative from the local public administrator's office.


Probate Law Application


Local laws governing the probate process often depend on the value and complexity of the estate. If the value of the estate is relatively small, the probate process may be avoided. In some jurisdictions and/or at a certain threshold, probate must be applied for by the Executor/Administrator or a Probate lawyer filing on their behalf. The Probate lawyer is a specialist in probate law, who makes application representing the Executor/Administrator.

Wills, Probate and Real Estate Law  Attorney Miami, FL | Abogada deTestamentos, Sucesiones y Bienes Raices en Miami FL | Advogada de Testamentos, Sucessões e Direito Imobiliário em Miami, FL

PROBATE LAW

Law Offices of Alina F. Nuñez, Esq.


Probate law is a legal process initiated at the time of you or your loved one's death. Filing the Administration of the Estate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under a will. A probate court (surrogate court) decides the legal validity of a testator's (person's) will and grants its approval, also known as granting probate, to the executor. The probated will then become a legal instrument that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having the legal power to dispose of the testator's assets in the manner specified in the testator's will. However, through the probate process, a will may be contested.

Probate Law


From Wikipedia, the free encyclopedia:


Probate Law is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence [or real property] of the deceased at time of death in the absence of a legal will.

The granting of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under a will. A probate court decides the legal validity of a testator's (deceased person's) will and grants its approval, also known as granting probate, to the executor. The probated will then becomes a legal instrument that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having the legal power to dispose of the testator's assets in the manner specified in the testator's will. However, through the probate process, a will may be contested.[1]


​Terminology   
Executor


Main article: Executor
An executor is a person appointed by a will to act on behalf of the estate of the will-maker (the "testator") upon his or her death. An executor is the legal personal representative of a deceased person's estate. The appointment of an executor only becomes effective after the death of the testator. After the testator dies, the person named in the will as executor can decline or renounce the position, and if that is the case should very quickly notify the probate court registry accordingly. There is no legal obligation for that person to accept the appointment.

Executors "step into the shoes" of the deceased and have similar rights and powers to wind up the personal affairs of the deceased. This may include continuing or filing lawsuits to which the deceased was entitled to bring, making claims for wrongful death, paying off creditors, or selling or disposing of assets not particularly gifted in the will, among others. But the role of the executor is to resolve the testator's estate and to distribute the estate to the beneficiaries or those otherwise entitled.

Sometimes, in England and Wales, a professional executor is named in the will – not a family member but (for example) a solicitor, bank or other financial institution. Professional executors will charge the estate for carrying out duties related to the administration of the estate; this can leave the family facing additional and unexpected costs. It is possible to get a professional executor to renounce their role, meaning they will have no part in dealing with the estate; or to reserve their power, which means the remaining executors will carry out the related duties, but without the involvement of the professional executor.[2]

Administrator
When a person dies without a will then the legal personal representative is known as the "administrator". This is commonly the closest relative, although that person can renounce their right to be Administrator in which case the right moves to the next closest relative. This often happens when parents or grandparents are first in line to become the administrator but renounce their rights as they are old, don't have knowledge of estate law and feel that someone else is better suited to the task.

The appointment of an administrator follows a codified list establishing priority appointees. Classes of persons named higher on the list receive priority of appointment to those lower on the list. Although appointees named in the will and relatives of the deceased frequently receive priority over all others, creditors of the deceased and 'any other citizen [of that jurisdiction]' may act as an administrator if there is some cognizable reason or relationship to the estate. Alternatively, if no other person qualifies or no other person accepts the appointment, the court will appoint a representative from the local public administrator's office.


Probate Law Clause



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This section needs to be updated. In particular: a more modern example is preferred. Please update this article to reflect recent events or newly available information. (March 2017)
A representative example of a complete probate clause, from the 14th century (or earlier) onwards, added at the bottom of the office transcribed copy of a will is as follows, taken from the will of Anthony Bathurst, 1697, PROB 11/438:[3]

PROBATUM fuit huiusmodi testamentum apud Londinium coram [4] venerabili et egregio viro domino Richardo Raines, milite, legum doctore curiae praerogativae [5] Cantuariensis magistro custodis sive commissarii legitime constituti vicesimo tertio die mensis Junii Anno Domini Millesimo Sexcenti Nonaginta Septimo juramento [6] Mariae Bathurst relictae et executricis in dicto testamento nominata cui commissa fuit administratio omnium et singulorum bonorum, jurium et creditorum dicti defuncti de bene et fideliter administrando [7] eadem ad sancta Dei Evangelis jurat. Examinatur.

Translated literally as:

This will be proved in London before the worshipful Sir Richard Raines, knight, Doctor of Laws, Master Keeper or Commissary of the Prerogative Court of Canterbury, lawfully constituted, on the twenty-third day of the month of June in the year of our Lord one thousand six hundred and ninety-seven, by the oath of Mary Bathurst, relict and executrix named in the said will, to whom administration was granted of all and singular the goods, rights, and credits of the said deceased, sworn on the Holy Gospel of God to well and faithfully administer the same. It has been examined".


Etymology



The English noun "probate" derives directly from the Latin verb probare,[8] to try, test, prove, examine,[9] more specifically from the verb's past participle nominative neuter probatum,[10] "having been proved". Historically during many centuries a paragraph in Latin of standard format was written by scribes of the particular probate court below the transcription of the will, commencing with the words (for example): Probatum Londini fuit huismodi testamentum coram venerabili viro (name of approver) legum doctore curiae prerogativae Cantuariensis... ("A testament of such a kind was proved at London in the presence of the venerable man ..... doctor of law at the Prerogative Court of Canterbury...")[11] The earliest usage of the English word was in 1463, defined as "the official proving of a will".[12] The term "probative," used in the law of evidence, comes from the same Latin root but has different English usage.


Probate Law Process



See also: Administration (probate law)
Probate is a process of improvement that proves a will of a deceased person is valid, so their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:[13][14][15][16]

Creditors must be notified and legal notices published.
Executors of the will must be guided in how and when to distribute assets and how to take creditors' rights into account.
A Petition to appoint a personal representative may need to be filed and letters of administration (often referred to as "letters testamentary") issued. A Grant of Letters of Administration can be used as proof that the ‘Administrator' is entitled to handle the assets.
Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, the jointly owned property passes automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
There are time factors involved in filing and objecting to claims against the estate.
There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
Real estate or other property may need to be sold to effect the correct distribution of assets pursuant to the will or merely to pay debts.
Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
Costs of the administration including ordinary taxation such as income tax on interest and property taxation is deducted from assets in the estate before distribution by the executors of the will.
Other assets may simply need to be transferred from the deceased to his or her beneficiaries, such as life insurance. Other assets may have pay on death or transfer on death designations, which avoids probate.
The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently.
Local laws governing the probate process often depend on the value and complexity of the estate. If the value of the estate is relatively small, the probate process may be avoided. In some jurisdictions and/or at a certain threshold, probate must be applied for by the Executor/Administrator or a Probate lawyer filing on their behalf.

A probate lawyer offers services in probate court and may be retained to open an estate or offer service during the course of probate proceedings on behalf of the administrator or executor of the estate. Probate lawyers may also represent heirs, creditors and other parties who have a legal interest in the outcome of the estate.

In common law jurisdictions, probate ("official proving of a will") is obtained by executors of a will while letters of administration are granted where there are no executors.[17]


​United States



See also: Uniform Probate Law Code
Question book-new.svg
This article relies largely or entirely on a single source. Relevant discussion may be found on the talk page. Please help improve this article by introducing citations to additional sources. (October 2007)
Most estates in the United States include property that is subject to probate proceedings.[16] If the property of an estate is not automatically devised to a surviving spouse or heir through principles of joint ownership or survivorship, or otherwise by operation of law, and was not transferred to a trust during the decedent's lifetime, it is generally necessary to "probate the estate", whether or not the decedent had a valid will. For example, life insurance and retirement accounts with properly completed beneficiary designations should avoid probate, as will most bank accounts titled jointly or made payable on death.[36]

Some states have procedures that allow for the transfer of assets from small estates through affidavit or through a simplified probate process. For example, California has a “Small Estate Summary Procedure” to allow the summary transfer of a decedent's asset without a formal Probate proceeding. The dollar limit by which the Small Estate procedure can be effectuated is $150,000.[37]

For estates that do not qualify for simplified proceedings, a court having jurisdiction of the decedent's estate (a probate court) supervises the probate process to ensure administration and disposition of the decedent's property is conducted in accord with the law of that jurisdiction, and in a manner consistent with decedent's intent as manifested in his will. Distribution of certain estate assets may require selling assets, including real estate.

Avoiding probate Law
Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy insuring the decedent or bank or retirement account that names a beneficiary or is owned as "payable on death", and property (sometimes a bank or brokerage account) legally held as "jointly owned with right of survivorship".

Property held in a revocable or irrevocable trust created during the grantor's lifetime also avoids probate. In these cases, in the U.S. no court action is involved and the property is distributed privately, subject to estate taxes.

The best way to determine which assets are probate assets (requiring administration) is to determine whether each asset passes outside of probate.

In jurisdictions in the U.S. that recognize a married couple's property as tenancy by the entireties, if a spouse (or partner in Hawaii) dies intestate (owning property without a will), the portion of his/her estate so titled passes to a surviving spouse without a probate.

Steps of probate law
If the decedent dies without a will, known as intestacy, the estate is distributed according to the laws of the state where the decedent resided.

If the decedent died with a will, the will usually name an executor (personal representative), who carries out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person is named administrator. An executor or an administrator may receive compensation for his service. Additionally, beneficiaries of an estate may be able to remove the appointed executor if he or she is not capable of properly fulfilling his or her duties.

The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is the personal representative.[citation needed]

The probate law court may require that the executor provide a fidelity bond, an insurance policy in favor of the estate to protect against possible abuse by the executor.[38]

After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes, including estate tax in the United States, if the estate is taxable at the federal or state level. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.

A party may challenge any aspect of the probate law administration, such as a direct challenge to the validity of the will, known as a will contest, a challenge to the status of the person serving as personal representative, a challenge as to the identity of the heirs, and a challenge to whether the personal representative is properly administering the estate. Issues of paternity can be disputed among the potential heirs in intestate estates, especially with the advent of inexpensive DNA profiling techniques. In some situations, however, even biological heirs can be denied their inheritance rights, while non-biological heirs can be granted inheritance rights.[39]

The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in an interest-bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate*.


*SOURCE:

​​https://en.wikipedia.org/wiki/Probate

Call Today | Ligue Hoje | Llámenos Hoy : (305) 962-5929

Wills, Probate and Real Estate Law  Attorney Miami, FL | Abogada deTestamentos, Sucesiones y Bienes Raices en Miami FL | Advogada de Testamentos, Sucessões e Direito Imobiliário em Miami, FL