Many people have heard horror stories about probate–battles with family members or long delays leading to increased costs–but the reality is that for most people, probate is a relatively fast and easy process. That said, there are occasions when it makes sense to take steps now so your family can avoid probate after you pass.
If you’ve been wondering how to avoid probate in Florida, this blog is for you. Avoiding probate is especially relevant for people who have only a spouse or one adult child or whose primary asset is their home or a bank/investment account.
There are processes that will allow for the transfer of property without the involvement of a probate court. A Florida estate planning attorney can help you determine if planning to avoid probate is right for you, depending on your specific circumstances.
Understanding Probate Under Florida Law
Probate is the legal process overseen by the Florida Probate Courts to distribute a person’s assets after their death. A probate ensures that all assets are accounted for and that they are distributed according to the person’s wishes conveyed in a properly executed last will and testament and/or Florida law.
(See our blog, What are the steps to making a will in Florida.)
Generally, the personal representative appointed in the will works with an experienced estate attorney to manage the process. Assets are identified, debts are paid, and then property, money, and other valuables are passed to the appropriate heirs.
In most cases, the probate process is straightforward and is completed within a few months. But in some situations it might be unnecessary. With the right planning, probate may be avoided, with assets instead transferred through alternative methods under Florida law.
Why Some Families in Florida May Prefer to Avoid Probate
In some cases, trying to avoid probate makes sense. This is because there can be some downsides to the probate process. Here are some reasons people sometimes want to avoid probate.
- Small estates. People whose main asset is the condo they live in or money in a single bank or investment account may find it easier to use other methods to transfer these assets after their death.
- Time and expense. While in most cases the probate process is not too lengthy or expensive, bypassing it via certain processes may be faster and cheaper.
- Family stress. Disputes over wills, guardianship of minor children, or how assets are divided can strain relationships. But mitigating this problem doesn’t necessarily require avoiding probate; instead, everyone should have an updated, properly executed will that spells out exactly what they desire.
- Privacy concerns. Some people worry about privacy concerns, since probate is a public legal process with records submitted to the courts. However, this worry is generally overblown. Online access to probate records is restricted, meaning someone would have to go down to the courthouse to view them, and specific financial documents like inventories and accountings are always kept confidential.
Strategies to Help Avoid Probate in Florida
Waiting until a person dies, or even nears death, is too late to start the process of avoiding probate. Steps must be taken early to plan for the seamless transfer of assets without probate. Some or all of the following actions can be considered.
Acquiring Property As Joint Ownership With Rights of Survivorship
Florida law allows certain real-estate property to be jointly owned in a way that the surviving party automatically takes over the entire home when the other one passes. In essence, each party owns 100 percent of the home. Properties owned in this way are deeded as “joint ownership with rights of survivorship,” instead of the alternative “tenants in common,” where each party owns only 50 percent.
This arrangement is frequently used for spouses, especially if there are no children from a prior marriage.
Drafting and Executing a Lady Bird Deed
Many older people come to our firm looking for a legal document that allows them to maintain control of their home or other real estate while they are alive but that transfers it to their grown child or children after they pass.
Fortunately, Florida does allow for such a legal document, an enhanced life estate deed, or, as it is more commonly known, a lady bird deed. This deed can be easily drafted by an experienced real estate attorney. The deed does not change the current ownership and comes into effect only after the hometowner has died.
Recording Beneficiary Designations on All Accounts
Assets held by financial institutions generally allow people to name a beneficiary on the account so the asset can pass to that person without a probate. You can generally designate more than one beneficiary and indicate the percentage of the account that goes to each individual.
This process generally applies to:
- Bank accounts
- Investment accounts
- Retirement accounts like IRAs and 401(k)s
Life insurance accounts do not fall in this category because they always pass outside of a probate.
It’s important to regularly review who you have listed as the beneficiaries on each account and update this as desired, since situations change over time with marriages, divorces, and deaths.
Establishing a Revocable Living Trust
Other assets in a deceased person’s name when they pass need to go through the probate process. This is why some people keep assets out of their name by creating what is called a revocable living trust. Assets inside the trust are legally owned by the trust, not the individual. When the trust beneficiary passes, the successor trustee named in the document automatically steps in as the new owner.
Revocable Living Trusts are a good option for some people. However, over the years our law firm has seen many of their downsides. Most problematic is that it’s easy over the years (or decades) to lose the legal document that created the trust, because it is not filed with the court. In this case it is a huge challenge for the person who is certain they are the successor trustee to actually take over the trusts.
(See our blog, The pros and cons of a revocable living trust.)
In other cases, assets are often left out of the trust and remain in the person’s name–especially assets acquired after the trust was created. For this reason, it’s important for people who have a revocable living trust to also have a certain type of will that pours these personal assets into the trust after their death.
A trust and estate planning attorney can explain how a revocable living trust operates under Florida law and help you determine if it is right for you.
Additional Considerations for Estate Planning
Documents that help you successfully navigate through or avoid probate are only part of a comprehensive estate plan. When working with Florida estate planning lawyers, you may want to discuss these additional topics.
- Advance directives. These documents include living wills and healthcare surrogates that enable you to state preferences for your end of life care while you are able to. Our law firm has also created a document, My Last Emotional Wishes, that is not legally binding but that can be used to convey your other end-of-life desires.
- Durable power of attorney. In some cases, drafting a durable power of attorney, which gives financial control of your assets to a loved one during your lifetime, may also be needed.
Work With a Florida Estate Planning Attorney
No single estate-planning approach works for everyone because every family’s situation is different. At the Law Office of Gary M. Landau, our Florida estate planning services are designed around your life, your loved ones, and your wishes. Whether you are interested in drafting a will, creating a trust, making a new home deed, or probating a loved-one’s estate, our firm is ready to work with you. We serve clients throughout Florida to create a personalized estate planning strategy that protects what matters most to you.
Stop searching for “Florida estate planning lawyers,” “Florida estate planning attorney,” or “trust and estate planning attorney near me,” and contact our office to guide you through these legal matters with professionalism and compassion.
Start Taking Steps Today to Protect Your Legacy with the Law Office of Gary M. Landau in South Florida
If you want to learn more about how probate in Florida or how to avoid it, contact the Law Office of Gary M. Landau. Our firm offers comprehensive estate planning and probate administration services for clients throughout Florida, including Coral Springs, Parkland, and Boca Raton in South Florida.
With more than 25 years of experience in our practice areas and countless satisfied clients, attorney Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate title and closing needs in Coral Springs, Parkland, Boca Raton, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, want to change your deed, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.
Call our office at (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We happily work with our clients in person, over the phone, or on Zoom.
The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.
LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://www.garylandau.com/