Even many people with a cursory understanding of probate law can sometimes get a little confused about how it impacts heirs. For those decedents who leave behind a will, there is typically little to debate. When the probate process gets to the point where it’s time to distribute assets, the beneficiaries are generally identified in the provisions of that Last Will and Testament. Unless the will is contested in court, those heirs receive the assets from the estate, as directed by that testator. When there is no will, however, probate law can become quite confusing for those who are less than familiar with how estate settlements are supposed to work.
The Estate Settlement Process
In cases where a will goes to probate, heirs often have little to do but wait. The estate executor is tasked with handling all the gritty details of the probate process, including the securing of assets, settlement of outstanding creditor claims, payment of taxes, and reports to the court. Under ordinary circumstances, most heirs have no part to play in that process unless they’re actively assisting the executor in the fulfillment of those responsibilities.
They still have rights, though. Executors have a fiduciary duty to the beneficiaries of a will, which means that they need to ensure that their actions protect the interests of those beneficiaries. Heirs are entitled to rely on an executor to do everything within his power to protect the value of the estate assets and ensure that they receive as much of the intended inheritance as possible.
Having Trouble with an Executor?
Of course, things don’t always go according to script. On occasion, executors fail to do their due diligence. Some do a poor job of communicating with heirs, and end up creating distrust and concerns about how the estate is being managed. At other times, executors may be reckless or careless in their duties, resulting in a loss of asset value that directly harms those heirs’ interests. And then, of course, there are the rarer occasions where executors attempt to defraud heirs.
While heirs are more commonly disconnected from the probate process until assets are distributed, those types of circumstances can call for more direct intervention. At such times, heirs can petition the court for redress – seeking the removal and replacement of a wayward executor or even filing suit to protect their interests. Naturally, such actions should be taken only with the advice and counsel of an experienced probate attorney.
When No Last Will is Present
When the decedent dies without a will, the probate process proceeds in much the same way. Since there is no designated executor, the probate court appoints a personal representative to manage the settlement of the estate. The duties are the same as those performed by an executor, as assets are secured, debts and taxes paid, and the remainder of the estate is distributed to heirs. The disposition of that property cannot, however, be made in accordance with the decedent’s last wishes since there is no will. Instead, the court and personal representative must look to statutory law.
That statutory law is found in the law of intestate succession. The intestate succession law defines who gets what, based on their relationship to you. The exact amount of your estate that any heir can receive is also dependent upon other factors, such as whether you have any surviving children, whether you’re married, and so on. For example:
If you have a spouse, but have never had children, then your spouse inherits the entire estate. If you have children but no current spouse, then the children receive all your assets. If your parents are still living and you have no spouse or children, then your parents inherit the entire estate. There are many other combinations of circumstances in which spouses, children, and siblings can either inherit the entire state, or receive a set portion of those assets.
There are also specific classes of children who may or may not be entitled to a share of the estate. Any child adopted by you receives a share in the same way any biological child would. That includes children conceived before your death but born afterwards. Any child that was born outside of wedlock can be eligible to receive a portion of the estate if paternity can be established – either by a court or through your own acknowledgment. Stepchildren and foster children are not entitled to a share unless you have adopted them.
Florida Inheritance Rights
It’s also important to remember that Florida’s laws are designed to provide protection to your spouse and children’s inheritance rights. These protections can ensure that your lawful spouse and descendants maintain their right to an inheritance even if your Last Will tries to disinherit them. For example, spouses maintain some level of homestead rights for your marital home. In addition, your close heirs can typically request family allowances during the probate process to provide for their support.
Pursuing an Heir’s Interests
If you’re an heir who believes that your loved one intended to leave you more than the current will suggests – or if you’ve been denied an inheritance but would be entitled to one by law if there were no will, you may have cause to contest that document. Will challenges can be complex legal affairs, however, so it is important to consult with an attorney to review the facts and determine whether you have cause for action.
Can an Attorney Help You?
The complexity of the legal process makes sound legal guidance a necessity for heirs who face challenging probate circumstances. Whether you need to contest a will, are unsure whether you’re entitled to an inheritance, or are simply frustrated by an executor’s actions, we can help. At Robert J. Kulas, P.A., Medicaid & Estate Planning Attorneys, our probate law experts can help to ensure that your rights as an heir are protected. We’ll work with you to examine your circumstances, and help you find the best solution for your problem. To find out how we can help you to secure your inheritance rights, contact us online or call us today at (772) 398-0720.
