13 Apr 04 – Who are the Material Parties in Probate?
By: Barry E. Haimo, Esq.
January 9, 2018
Who are the Material Parties in Probate?
Read this post to learn more about the process before proceeding. Estate administration (or probate) can be a lengthy court process. As you learned earlier, it requires addressing the ABCs of a deceased persons’s life: assets, beneficiaries and creditors. Each can have complications of their own to deal with, but let’s first talk about the basics of any probate; particularly, who are the material parties.
Below is a list of parties you can expect to be involved in any estate administration (probate). To some extent, each will have access to documents, pleadings and filings. Whatever is not “public” will still be reviewed by many people, especially those that require receiving served with copies of pleadings and filings. The only way to minimize this, if not avoid this result, is to avoid estate administration (probate) altogether.
- Interested Persons(family) – Pursuant to Interested Persons are required to be apprised of the estate’s progress with proper notice of pleadings. In addition, they must receive copies of accountings and inventories.
- Business Partners – Your business partner is now deceased so his or her estate owns the shares of the business now. As a result, the heirs of your business partner will have something to say about the business management and operation unless you plan ahead. We highly encourage you to plan ahead.
- Creditors – I don’t like it either, but creditors have rights too. They must be notified of proceedings and receive copies of various filings, such as the estate inventory or amended inventories.
- Personal Representative – the Personal Representative is the person who is responsible for administering the estate through the probate proceedings. He/she/it must intimately become familiar with the deceased’s assets, beneficiaries and creditors. In fact, they have a fiduciary duty to uphold their obligations and protect and enhance the estate at the risk of being held personally liable for damages relating thereto.
- Attorneys – The Personal Representative’s attorney (lawyer) will obviously have access to information about the deceased (a/k/a the decedent). He or she will prepare filings, notices, correspond with actual and purported beneficiaries, actual and purported creditors and attend court appearances as necessary. Therefore, the attorney will obviously be aware of the deceased’s information and the status of the administration.
- Paralegals – the law firm the Personal Representative employs will likely have a paraprofessional on his or her team. He or she will assist in preparation of all documents, pleadings and hearings. Therefore, he or she too will be aware of the deceased’s information and the status of the administration.
- Associates – the law firm the Personal Representative employs will likely have an associate or junior partner attorney on his or her team. He or she will assist in preparation of all documents, pleadings and hearings. Therefore, he or she too will be aware of the deceased’s information and the status of the administration.
- Court clerks – the circuit court clerks are the gatekeepers of any estate administration (probate). They are responsible for receiving filings, evaluating them, approving them and then organizing them into the file. They have a thankless job and are overworked and underpaid at least in South Florida. You can expect the clerk to review every piece of paper that comes across their desk.
- Case managers – Clerk staff pass on the files to the case managers once the files are ready to proceed and usually after a filing comes in requesting the Judge’s review and signature. Case managers represent another set of eyes on the file to ensure that mistakes are not made, notices are not missed, and the requests are properly approved or denied.
- Judicial assistant (JA) – Every circuit court judge has a judicial assistant to assist with reviewing cases, documents and pleadings. He or she will likely review the file and law on the subject in order to help the judge make an informed decision. As is the theme here, the JA is another set of eyes on the documents and status of the estate proceeding.
- Judge – obviously the judge has the review the file and pleadings and rule on each one. Good judges review their files very carefully to avoid mistakes, as in the context of probate, mistakes can substantially and adversely affect peoples’ rights.
As you can see, probate involves many people along the way. That requires time at each step and therefore delays proceedings (especially in Miami-Dade County) where there are limited case managers and staff. In addition, the number of people involved in probate translates to less privacy as well. If privacy is a paramount concern, you want to avoid probate.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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Originally posted 2018-01-09 10:00:48.