Practice Areas
What is Probate and How Does it Work?

With over thirty years of experience the Law Offices of Bernard Einstein Esquire have been retained by numerous clients to assist them with Probate and the process of Administering of Estates. Over the past 30 years Bernard Einstein has advised and assisted his clients in causing all necessary proper steps to be taken for the purpose of; collecting of all assets of the estate; paying of all debts of the deceased;  distribution of the assets that may remain among those entitled thereto; accounting for the acts of the Personal Representative of such estate; doing of all acts and things necessary for the full and complete  administration and settlement of the estate of the said decedent.

When an individual dies owning property in his or her name, that property generally must go through probate. Probate is a legal procedure that establishes ownership of property in others. The probate system is designed to ensure the validity of a will, to give notice to all possible claimants of property and to resolve ownership disputes and rights. Probate courts also distribute property not covered by a will (intestate estates) according to legal defaults. Some property does not require probate to change hands: joint tenancy property and contractual arrangements such as insurance policies and retirement accounts generally go directly to the surviving joint tenant or named beneficiary without probate oversight. Probate also is not required for assets held in trust.

The deceased person is referred to as the “decedent”. Under Florida Law, a legal proceeding known as “probate” usually is required to settle and dispose of a decedent’s estate. The court proceedings are carried out in the probate court of the county of the decedent’s domicile at time of death.

The process of probate, or administration of the estate, or settlement, depending upon the term you prefer, begins with filing the will for probate,  preparation and filing of a petition for probate, and after various procedures which are handled by the Attorney retained by the Personal Representative responsibility to see to, the judge will sign letters of administration.  The letters of administration are evidence of the  legal authority of the  personal representative to act.

You have been appointed as personal representative of an estate and you should be aware of your duties and responsibilities of that position.  The functions which are described here are often referred to under the term "settling the estate".  The process of settling the estate is a legal process and as your attorney I will counsel and advise you throughout this procedure.

A an executor or personal representative as referred to in Florida   is classified in the law as a "fiduciary".  A fiduciary is a person who has been selected for a position of special faith, trust and reliance.  A trustee is another type of fiduciary and the duties and responsibilities which you have in the settlement of this estate are quite similar to the duties and responsibilities that a trustee would have.

For the period of administration of the estate the Personal Representative  entitled to possession and control of all of the assets of the estate.  The Personal Representative first and foremost to protect and preserve the assets and also to see that the assets are invested in a prudent and cautious manner.

The persons to whom the Personal Representative  owe these duties are, first, any creditors of the estate, and secondly, the beneficiaries of the estate.  If the Personal Representatives duties are not properly or competently performed, the Personal Representative may have to answer to any of these persons who have been harmed as a result.

The probate administration passes  through several stages or plateaus.  The  first stage of the administration, after the letters of administration are issued to the Personal Representative, is that of the  Personal Representative giving notice to those persons who are involved or interested in the estate.  Beneficiaries of the estate will receive this required notice by certified mail.  Creditors are given legal notice by publishing a legal notice in the newspaper.

Collecting Assets
The next stage of administration is that involved in identifying, collecting, inventorying, valuing, securing and investing the assets of the estate.  An important part of making certain that assets are secure is arranging for adequate insurance coverage for tangible personal property or improved real property.  A list of all of the assets and their values must be filed with the court in the form of an inventory, and, if the estate is of a size sufficient to require the filing of an estate tax return, similar information must be provided for the State of Florida and for the Internal Revenue Service.  At the Law Offices of Bernard Einstein we have successfully helped numerous Personal Representatives in preparing the inventory list, obtaining the asset values and preparing the necessary documents which need to be filed.

Notifying  Creditors
During the early stages of administration (within approximately the first three months) any person having a claim against the estate as creditor is required to file the claim in the court.  At the end of this initial period you will review any claims filed to determine that each appears to be valid and then promptly arrange for and make payment of all valid claims to avoid interest expense.  Any claims not filed in this time period are not legal obligations of the estate, and in most instances cannot be legally paid.

Filing Tax Returns
Another stage in the proceedings in the estate is the determination of various tax returns which may be required by law to be filed for the estate.  There may be many required tax returns; however, the most common are income tax returns for the decedent, which may not have been previously filed, income tax returns for the estate, and an estate tax return, which is required by law to be filed if the total taxable estate exceeds a certain valuation.  In addition, if the estate owns intangibles such as stocks or certain bonds, an intangible tax return is required to be filed each year with the State of Florida.  As your attorney I will review the estate assets and the estate income to determine which, if any, tax returns are required to be filed.  Merely because a tax return is required by law to be filed does not necessarily mean that any tax is due.

Management of Assets          
Throughout the estate proceeding, management of the assets is an important concern of the personal representative.  Management of the assets includes investment of the assets, whether in bank accounts, government bonds, or other prudent forms of investment, to the extent that the estate has excess cash.   Cash requirements for the estate include the payment of creditors, the payment of expenses of administration, and for the payment of taxes.

Distribution of the Estate
After expenses, including taxes, have been paid, the next level or plateau of the administration is the procedure involving distribution of the estate to the beneficiaries. The Law Offices of Bernard Einstein will review the terms of the will, or in case there was no will, we will advise you of the provisions of the law which apply in order to identify the persons who are properly beneficiaries of the estate and who are entitled to distribution. We will also calculate the distributive shares after deduction of any taxes which are attributable to that share.  Distribution of the assets of the estate then occurs to the persons entitled, sometimes by distributing the assets directly in satisfaction of a bequest, and other times by selling those assets and converting them to cash, and then distributing the cash.

Closing of the Estate
The final state of Probating the  estate is closing out the probate.  In this procedure the court enters its order discharging the personal representative after their duties have been completed.  In order to accomplish this estate closing, it is necessary to report to the court on all of the legally significant activities which occurred in the estate and to furnish evidence that the creditors have been paid, that certain taxes have been paid, and that the remaining property has been distributed to the persons entitled to that property in proper shares.  When this evidence has been presented in proper form, which is again my legal responsibility of the attorney you retain, the judge will sign an order which discharges you as personal representative and terminates further obligations with regard to the probate.

Potential Liability of Personal Representative-Protecting the client
At each step along the way the Law offices of Bernard Einstein will keep you fully informed and knowledgeable of all of your responsibilities and of everything which our offices do in regard to the probate.

As personal representative of the estate, in accepting that office and that trust, you have also agreed to be personally responsible financially for certain matters.  Initially, of course, you have personal responsibility for proper administration, investment, and subsequent distribution of the assets of the estate.  As I pointed out earlier, should you fail in this duty you may be sued by any person who has been injured by your failure.  More importantly, however, is certain hidden liability which you have assumed, and of which you should be aware, for the payment of various taxes which were owed by the decedent, or which may subsequently be owed by the estate.  Upon the failure to pay these required taxes, the law permits the Internal Revenue Service, and in some situations, the State of Florida, to collect the taxes from your own assets.  This would include the right to freeze your personal bank account or place liens on real estate or other property which may belong to you personally.  This, of course, occurs only if you failed to pay taxes from the estate that are required to be paid by you in your capacity as personal representative.  It is because of this exposure to items which might otherwise be unknown to the Personal Representative  that the Law offices of Bernard Einstein  should work closely with their clients, advising the Personal Representatives  at each level on their  duties and responsibilities.

Please call for an initial Free Legal  consultation.

801 Northeast 167th St. 2nd Floor
North Miami Beach, FL 33162
Telephone: (305) 455-2040