Is probate always needed?
Dear Mr. Feichthaler: My husband always planned ahead, and one thing he considered all the time was me and my daughter. Part of that planning included having a living trust created so that the accounts and assets of my husband would not need probate, and we used an attorney in Cape Coral (not with your firm) to draw up the papers. This included deeding the house into a trust and titling the bank accounts to the trust as well. After a brief battle with lymphoma, my husband died two weeks ago. My daughter and I went to the same lawyer to make sure everything was set, and he told me that we still needed to do probate. He said that, without probate, creditors could “chase us forever.” He charged me over $2,500 for what he said was a “summary” probate. Is probate always needed, because I am certain he said it wouldn’t be when my husband made the trust.
– Gladys R.
Dear Gladys: First, my condolences on your loss. Your husband was definitely looking out for you and your daughter when he sought to prepare his estate planning documents. By doing so, the house and accounts titled to the trust do not require probate. When one of my clients passes away who has a trust as part of their estate plan, a few items need to be asked of the family members. First, was all of the real estate titled to the trust Also, were the bank accounts, investment account and other assets titled to the trust as well? If yes, then probate is not needed to transfer these assets to the loved ones or charities of my clients. Next, are there any creditors that could make a claim, such as doctors and hospitals, or even a judgment from the past? If the answer to this is no, then there is virtually no benefit in conducting a probate. Granted, by filing a probate petition and proper notice to creditors, all claims are cut off after 90 days. However, if there is a creditor out there, and they make a claim, then the claim needs to be paid anyway before the order is entered by the judge. If my clients believe there are no creditors, and are willing to pay them should one arise, the costs of probate are not justified. All situations are unique, so there may be situations where, even with a trust, a probate could be beneficial. However, in the vast majority of situations, a probate is not worth the cost of pursuing to block off hypothetical creditors. Additionally, if the attorney’s fee is $2,500 to file a summary probate petition for what would amount to personal property (clothing, furniture, etc.), the cost you are being charged may be grossly excessive. Whenever hiring a lawyer or any other professional firm, it is advisable to ask your friends if they have had good or poor experiences with a local lawyer. You can also search the public records at www.leeclerk.org to see if the lawyer is often being sued themselves by clients and debt collectors. You can also check www.flabar.org to see if there is a history of discipline for that lawyer with the Florida Bar. Especially in your time of grief, a lawyer who would overcharge you for services that are not even necessary does not deserve your respect or your family’s hard-earned money.
Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.
This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.