This coming October will mark the 5th year that we have been intensely focused on Florida Probate Law.

In these past five years, I have personally handled several hundred (maybe north of 1000) free consultations to people faced with the possibility of probate.

Not everyone hires my firm, but many of them have still seriously been rewarded by talking to an attorney first!

Allow me to explain:

Probate Forms Are Intended for Use By Attorneys Only

No, not so attorneys can stay employed.  There is more to probate in Florida than just filling out forms.  Cynics won’t believe me, but if I kept count of all the non-clients who I saved big $$$$, they might think twice.  In the past, I’ve written about the necessity knowing WHEN TO FILE PROBATE.  Failure to properly time your probate can cost you thousands!

For example, starting a probate within 2 years from the date of death will expose the estate to creditors!  << That’s not always a big deal though.  If you’re just “probating” a homestead to transfer title, creditor issues typically don’t matter.

Probate May Not Even Be Necessary

Who told you that probate is necessary?  If your know-it-all uncle insisted you probate an estate, did you ever ask to see his law license? Sometimes, assets pass outside of probate by “operation of law”.  Does your uncle even know what that means?  Is he uncessarily encouraging you to probate an estate that doesn’t require any action on your part?

There Are Two Major Types of Probate

Opening the wrong type of administration can be costly or complicate matters.  Summary Administration is often enough.  But when is Formal Administration more useful?  Does the bank require “Letters Testamentary”?  Really?  If so, ask the banker if Letters of Administration would be acceptable because “Letters Testamentary” don’t technically exist in Florida Probate.

My regrettably sarcastic undertones ought to tell you that I’ve spent a lot of time correcting assumptions that bankers, uncles and other non-attorneys have erroneously advised.

Probate is NOT Do-It-Yourself

I hate to hear when people try to go it alone, despite the fact that most probate cases (even the small ones) require attorney representation. When they hit a wall or the once-friendly clerk decides to finally stop giving erroneous legal advice, it’s too late and an attorney might not be able to undo the mess.

Talk to a Florida Probate attorney before you wade into the murky waters of probate law.

If you are convinced you can do it yourself, at least entertain me with one consultation.  It could save you (and me) time, money and headaches.

99.99% of the time, the answer is yes.

Generally speaking, a personal representative must have attorney representation before the probate courts in Florida.

“But it’s a simple estate! Just a house and a checking account!”

Sorry, that’s not the criteria for a “simple estate” and it certainly
doesn’t lay the groundwork for rules requiring representation.

Here’s the primary rule:

Every guardian and every personal representative, unless the personal representative remains the sole interested
person, shall be represented by an attorney admitted to practice in Florida.

I know what some of you are thinking…

“Well, I am the sole beneficiary, so I must be able to represent myself.”

You may very well be the sole beneficiary but you are probably not the sole interested person. Interested persons may
include all sorts of people or entities, but the primary concern here are creditors.

“Well, we paid off all the credit cards, so we’re good right?”

Did you pay off Medicaid? Medicaid is a “class 3″ creditor which basically means they are up there on the list of people who
must be paid before any beneficiary takes their share of the estate. Medicaid must be notified if the decedent was 55 or older.

I could go on and on, but here’s the bigger picture:

We have taken no less than 20+ cases in the last year for clients who tried to start Summary Administration themselves. They had
convinced themselves it was easy enough to do that it was “just a few forms.” Of course until they had to provide the
appropriate proposed orders to the judge. Others didn’t know that there was a “proof of will” process required. Still
others didnt’ realize that the court clerks don’t give legal advice.

If a court clerk overlooks the fact that you dont’ have an undersigning attorney on your paperwork, you might get your foot in the
door. But the consequences of starting a process you’re not sure how to finish can be brutal – and the clerks won’t help you one
bit. Don’t blame them – they aren’t allowed to give advice.

And if the estate is NOT eligible for Summary Administration, don’t even think about going it alone. You won’t even get
past the clerks in Formal Administration.

One last thing to note: Petitioners, Executors and Personal Representatives are held personally liable
for their actions during the administration of probate. This is not an arena you want to dabble in simply because you’ve found a few
forms online.

You certainly don’t have to hire us, but please…hire an attorney to get it done right from the start.

Still not convinced? Have a look at the Florida Probate Rules.

Florida Probate Rules

Here are some (hopefully helpful) guidelines that might help you make your selection:

1. Do not “lawyer shop” by price alone – This is the single biggest mistake you can make. Sure, price has its place in the overall criteria, but it’s not necessarily rooted in the old adage, “you get what you pay for.” Some attorneys are so invested in other cases that they often farm out probate cases to their paralegals or administrative staff who aren’t well versed in probate. Don’t get me wrong – paralegals are the heart and soul of most law firms and without them, many attorneys would crumble under the pressure. That said, if the attorney is only going to sign off on the pleadings and petitions without truly reviewing them for accuracy, grave mistakes might be made which could throw a wrench in an otherwise “simple” probate case.
2. You don’t have to use the attorney who prepared the Last Will and Testament – As detrimental as this may be to our practice, the reality is that just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate (although the person of the Will may expressly request this in the Will.)
3. Do not assume that all attorneys practice Florida probate law - Yes, all Florida bar licensed attorneys are presumed competent to handle any kind of case. But would you want an heart surgeon tinkering around in your brain!
4. How accessible is the attorney? - You shouldn’t expect every attorney to be available at your beck and call. I suppose no one expects that anyways. But you should be able to reach the attorney without a constant firewall of phone attendants, paralegals and administrative assistants. Are periodic phone consultations just part of the hourly fee or does the attorney truly value the client interaction? Phone tag gets old. Find out if the attorney is willing to communicate with you by email. (on a side note: We have recently begun to implement Basecamp with some of our clients, and they love it! Read more about Basecamp here)
5. Is the attorney “hoarding” information? - If the attorney is tight lipped about your case, it’s probably because he or she is either holding out until you sign a retainer, or is concerned about malpractice (giving free advice over the phone, however altruistic, can get attorneys in hot water). In either case, there is always a bit of standard information that can be released to help a prospective client understand the probate issues inherent in the case. No one is entitled to free legal advice, but if the attorney is unreasonably tight lipped about even the most general concepts, you may be in for a very quiet relationship with that attorney!

Lastly, don’t go digging for information only to take it to the next attorney. That’s tacky. Attorneys know when you’re “lawyer shopping.” In your the personal representative or executor of an estate, you are probably required by statute to hire an attorney, so I suggest you choose wisely.

Get informed (read this blog) and then choose your attorney the right way. It will facilitate your working relationship with the attorney and you’ll be happier in the end.