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How does the probate process work?

October 29, 2011
By SYLVIA HELDRETH - Real Estate Law , Cape Coral Daily Breeze

Q: My husband has agreed to be his sister's personal representative when her estate is probated. How does the probate process work? What will he have to do?

A: First, as his sister's personal representative, your husband must understand and abide by his duties and recognize that this process generally lasts several months. His responsibility will be to distribute the property of his sister's estate to her beneficiaries, either as instructed in her will, or per the laws of Florida that apply to those without a will. Occasionally the process takes over a year so he should be prepared for a potentially long commitment.

Your husband's first task as personal representative will be to open the probate case with the court. Then, he will inventory and collect his sister's property. The next step is usually to recognize and settle any debts and taxes that must be paid.

This all seems straight forward but there may be disputes at any stage of the process. Anyone may make a claim on the estate, either by petitioning your husband as personal representative or petitioning the court. If the claim is rejected, the claimant may file a lawsuit to attempt to prove the claim and collect money.

Any dispute generally causes the court to treat the probate more formally, and it may reach the point where the court must approve the transfer of every piece of property before all the property can be distributed. Substantially court and attorney costs may be incurred. Your husband should try to avoid disputes.

Besides abiding by his sister's wishes and treating all beneficiaries fairly, your husband will have fiduciary duties. He has a duty to keep good stewardship of the money by, for example, keeping monies in interest bearing accounts. Real estate needs to be maintained, in good condition.

If he does not fulfill these duties, interested persons may petition for his removal and try to hold him liable for any harm to the estate.

It is always wise to seek the advice and help of an attorney who helps those going through the probate process. Legal issues of transfer of ownership of real property are not always as clear as one might think.

Attorney Sylvia Heldreth is a certified specialist in real estate law. Her office is located at 1215 Miramar St., Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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