The probate process is a legal process that happens after someone dies. While the probate can be complex, lengthy, and expensive, working with a qualified estate planning and probate attorney can help mitigate unwanted risks. They will be able to anticipate what might happen and prevent issues before they arise.
Sound estate planning can make the probate process run efficiently and smoothly. In turn, this helps to protect your estate’s value and legacy and preserves your family’s well-being.
The Florida probate process includes the following:
- Validating the will of the person who died
- Appointing someone to act as the personal representative of the deceased person’s estate
- Identifying and performing an inventory of the property of the deceased person
- Getting property appraisals
- Paying valid outstanding debts and taxes
- Distributing the decedent’s remaining assets and property according to their will
- Applying state intestacy laws if the deceased person had no will
Avoiding Probate
Estate planning attorneys can structure your estate to minimize or avoid probate. Circumventing probate reduces legal fees for your surviving heirs. It can also give your family a certain level of privacy, as probate and your Last Will & Testament become part of the public record.
Some Popular Alternatives to Probate
A Revocable Living Trust
With a revocable living trust, you can transfer money and property to a trust that still allows you to have access to these assets during your lifetime. This probate-avoidance technique can protect property you own, including:
- Bank accounts
- Real estate
- Jewelry
- Art collections and heirlooms
- Vehicles
- Businesses
This trust functions like a will by leaving your property to your loved ones after you die. With a revocable living trust, you can change the terms of your trust and the beneficiaries or revoke it while you are still alive. After your death, the property in the trust is in the control of your named successor trustee. They will then handle the distribution of your assets to your beneficiaries according to the trust’s instructions – without involving the probate court.
Life Insurance and Annuity Policies
Death benefits are paid directly to a designated beneficiary upon the death of the insured or annuitant and pass outside of the probate process.
Payable-on-Death (POD) or Transfer-on-Death (TOD) Accounts
With POD accounts, you can designate a beneficiary (or beneficiaries) for all types of bank accounts via your financial institution’s POD paperwork process. A TOD transfer applies in the same way to stocks, bonds, and brokerage accounts. These accounts will not be accessible to the beneficiary while you are alive. You can designate beneficiaries on various account types, such as:
- Checking or savings accounts
- Certificates of deposit (CDs)
- Individual Retirement Accounts (IRAs) and 401(k)s
- Inheritable pension and veteran benefits
- Investment accounts
As the account owner, you can withdraw money, close the account, or name a different beneficiary at any time. There may be a short waiting period after the designator’s death before the bank or credit union releases funds to the beneficiaries, but probate is not a requirement.
In some cases, you may not be able to name an alternate beneficiary, so staying current with the paperwork that designates your choice is important. No matter what information is in your will, it cannot override a properly established beneficiary designation so it is very important that you check your beneficiaries on at least an annual basis.
We do not suggest using POD and TOD accounts exclusively as a means to avoid the probate process. As mentioned, your beneficiaries will only have access to the money after you pass away and they are not obligated to pay for any of your expenses, including the cost of your burial or cremation. In fact, our office has seen a couple cases where the deceased person had to stay on ice for an extended period of time because the people they left all of their money to refused to pay for their burial or cremation with the assets they received from a POD or TOD account. It happens!
Streamlining the Probate Process
Many states, including Florida, have simplified probate procedures for smaller estates (those estates that are under a certain dollar valuation). In Florida, if the assets of the estate are below $75,000, the estate may be eligible for the Summary Probate process.
Many states don’t consider the value of certain properties when evaluating an estate, such as the value of your Homestead property in Florida. These property types may include real estate, motor vehicles, and other personal property.
In Florida there is also a process called Disposition of Personal Property Without Administration that can be used in very limited circumstances.
Work With an Estate Planning Attorney
An estate planning attorney will be able to help you identify the best path to protect your estate from the probate process. A sound estate plan can help sidestep many issues that arise from probate. Again, probate is generally a lengthy process – a minimum of 6 months in Florida – and, as a result, may reduce your estate’s value and legacy due to the associated court costs and attorney’s fees. Estate planning attorneys have the expertise to assist you and your loved ones in avoiding the additional costs of probate, both monetarily and to your family’s well-being.