Many experienced estate attorneys in Florida will advise that it is often best to do everything reasonably to try to avoid probate. In some instances, the question arises whether there is any good reason to open a probate. In the right situation, the answer can be a resounding “yes.”
In Florida, probate is a court administered process which can involve significant time, work and expense. As a result, estate planning lawyers often try to counsel clients on ways to avoid probate. These include use of a Living Trust, beneficiary designations, and “pay-on-death” designations. Implementing these techniques can avoid, or at least lessen, the assets which need to be probated.
However, in some instances, opening a probate can produce certain beneficial results even if the decedent’s assets pass outside the estate. Take a situation where the deceased person may have a liability pending against him or her. By opening a probate and providing the necessary notice to a potential creditor, the estate can force the creditor to come forward with its claim or be forever barred. Under circumstances where no probate is opened, this would not occur-at least not until the two year statute of limitations runs.
An example could be helpful. Let’s say the decedent had a business dispute with a former colleague. If the estate wants to determine whether that colleague intends to assert a claim, a probate could be opened and a Notice to Creditors served on the colleague. After the three month claims period has run, if the colleague has not asserted a claim, then the claim is forever lost. Overall, this probably would take 90-120 days to accomplish. However, if no probate had been opened, the colleague would have two years from the date of death to assert the claim. Using the procedures available in probate, the time deadline has been accelerated and the claim cut off.
