LEGAL GUIDE
Written by attorney Jonathan Noble David | Nov 26, 2010

FAQs about Probate Law: Wills, Bills and Inheritance -- What to do after loved one's death.

Things every person needs to know about probate law at a time like this:

What Is Probate?

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What Are The First Things That I Should Do?

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Do I Need To Pay My Loved One’s Bills?

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How Can I Prevent Others From Going Into My Deceased Loved One’s House And Taking (Stealing) Things?!

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I’m Pretty Sure That My Father/Mother/Sister/Brother Had A Will, But No One Can Find It!

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WHAT IS PROBATE?

The word “probate" refers to the process of winding up a deceased person’s affairs. The Probate Division of the courthouse handles the administration of Estates. The purpose of an Estate case is the orderly distribution of belongings and payment of debts a person who has died. The Probate Division of the court is where cases of inheritance (including proving Wills and resolving disputes between heirs, etc.) take place.

One of the benefits of the probate process is having a judge to oversee and monitor goings-on in the estate. The first step in a probate proceeding is the appointment by the court of a Personal Representative (also called an “Executor" in some jurisdictions). It is important to have one particular person given the authority to manage the estate, so that several different family members and friends are not climbing over each other to discover and/or take assets.

DO I NEED TO PAY MY LOVED ONES BILLS?

Probably not. After a person has passed away, creditors continue to send bills, whether or not they have been advised of the person’s death. Many times, the creditors put pressure on family members to make payments on behalf of the deceased person, but rarely is there a legal basis for this. Except for absolutely necessary bills(including mortgage payments, to prevent foreclosure, and utilities, to prevent cut-off when those services are still needed), and unless you are a co-signer on a credit account (and therefore may have liability for nonpayment), the creditors -- credit card companies, telephone companies, etc. -- need to file formal claims for payment in the probate case. Payment for that would come from the deceased person’s assets, and there is a procedure for asking the probate estate judge to authorize payment of the essential bills. In addition, there is a procedure in probate court for objecting to the claims of creditors if you feel they are unjust or should not be paid.

WHAT ARE THE FIRST THINGS THAT I SHOULD DO?

The first thing to do is to focus on preventing losses. Securing the deceased person’s home from damage or theft is an important first step. Another important task is the assembling of information and documents, to get the complete picture of the decedent’s estate. Did the decedent have a pre-paid funeral plan? Did the deceased person have life insurance? A safe deposit box at a bank? A Last Will and Testament? Stocks and Bonds? Any executed Power-of-Attorney forms that could be misused?

HOW CAN I PREVENT OTHERS FROM GOING INTO MY DECEASED LOVED ONE’S HOUSE AND TAKING (STEALING) THINGS?!

If you have any fear that possessions may be stolen from a deceased person’s home, you may take an inventory (with witnesses present, or using a video camera) to preserve information about what personal property and documents are in the home. There is also a process for requesting that the Court give you an emergency hearing, and a judge may enter an Order restricting the entry into the premises. Also, don’t forget that the police may be called, if there is an actual robbery taking place!

I’M PRETTY SURE THAT MY FATHER/MOTHER/SISTER/BROTHER HAD A WILL, BUT NO ONE CAN FIND IT!

This is a fairly common occurrence. Many people go to the trouble of drafting a Last Will and Testament, but then they put it in a “safe place" where no one can find it. With even a photocopy of a Will, a witness to its signing may be able to prove that it is a true and correct copy of an authentic Will. Or, the court-appointed Personal Representative of the Estate may go to each bank where the deceased person may have done business, and inquire as to whether there is a safe deposit box under the name of the deceased person. Of course, if no Will can be found, then the court will be at a loss to apply the desires of the person who wrote the lost instrument.

Florida law has a specific legislation (Florida Statute Sec. 732.101-732.103) as to how a deceased person’s assets are distributed to heirs when the decedent left no Will.

If you or your family need assistance in the probate process, please feel free to give me a call. I am happy to speak with you. – Jonathan N. David, Esq.

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