If you have been reading our blog for a while, you probably understand that probate is a legal process that applies to the property left behind by a deceased person. What you might not realize is that probate courts handle more than cases that arise after someone dies. So-called “living probate” cases can arise because an incapacitated person needs of others to step in to make decisions on his or her behalf. To give you a better idea of what living probate is and how it works, let us take a look at some common questions.
What is living probate?
We can better understand living probate by first looking at your typical probate case. Let’s say your grandmother lives in Florida and dies leaving behind property. Your grandmother didn’t leave behind any kind of estate plan, so in order to determine who inherits the property, someone will have to go to a Florida probate court and asked the court to open a new case. After opening the probate, the court will appoint someone to manage your grandmother’s state, determine if your grandmother owed any money, use estate funds to pay any unpaid debts, and then distribute the remaining property to the legal inheritors. All of this is fairly standard, and it happens every day.
Yet what happens if, instead of dying, your grandmother falls seriously ill? What happens if she can no longer make choices or express herself?
These are the types of cases that fall under the category of living probate. Common probate cases involve people who have died and left behind property, while living probate cases involve people who are still alive, yet who need decisions made for them because they are incapacitated.
What happens during living probate?
Living probate cases can vary in complexity, but they basically involve the same process. In a living probate case someone asks a Florida probate court to determine if a person is legally incapacitated. If the court determines that the person is incapacitated, it will then have to determine who should have the responsibility of caring for that person. Depending on the type of case involved, living probate cases can be resolved very quickly, or last months or longer.
Is there any way to avoid living probate?
Yes. In most situations, Florida residents can create plans that will address the possibility that they might one day become incapacitated. These plans allow you to make choices that will apply should you lose your ability to make choices later. You can, for example, use your incapacity plan to choose who you want to make choices on your behalf if you lose your ability to make them for yourself.