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Probate

When Does It Pay to Wait to Probate

In Florida, as in many other states, you can begin a probate for a deceased relative or friend as soon as the person passes away. Often, there are sound reasons for starting the probate as soon as several days or weeks. But sometimes, it is smarter to wait.

Starting early means the estate can begin the process of inventorying assets and putting up the person’s house for sale. And because probate can take months or longer, the sooner it is started, the quicker the heirs can get their inheritance. Read more

Is It Necessary to Try to Avoid Probate?

Clients sometimes come to me hoping to set up their estate in a way that will avoid probate after their death. Occasionally, especially if they have limited assets, this can easily be done, such as by created a lady bird deed for a home that adds another person to the deed. Often, though, especially with more complex assets, this would typically involve creating  a revocable living trust. While there are some people who can benefit from doing this, usually people’s fears of probate are way overblown.

the pros and cons of avoiding probate

Here are the major concerns I typically hear and why you shouldn’t worry about them:

  1. Taxes. While there is a federal  estate tax on the books, it applies only to estates worth more than $5 million. If your assets don’t total that amount, your heirs will not pay taxes on what they inherit from you.
  2. Privacy. It is true that wills deposited with the court are public property while trusts don’t need to be filed. In theory, then, anyone can see who you have left your estate to. In reality, though, unless you are a famous person it’s unlikely anyone is going to bother trudging to the courthouse to peek at your file.
  3. Fees. There are costs involved with a probate–court costs, attorney fees, and the like. But setting up a revocable living trust also has fees attached to it, and they are much more than the cost of drafting a will.

Here are the biggest downsides to trying to avoid probate with a revocable living trust:

  1. Documentation. The original trust is not filed with the court, and so can easily be lost over the years. Without that document, proving a person is the successor trustee (and entitled to the deceased person’s assets) is impossible. I have had several clients over the years who swear they are the successor trustee, but since the original trust had been drafted decades earlier and no one could find it they were never able to locate it.
  2. Trust not properly “funded.” After creating the trust, and after each asset purchase thereafter, the trustee’s home, cars, bank accounts, stocks and other assets must be placed into the trust. So many times a trustee passes away and one or more assets is discovered to have remained in their own name. That asset can only be disposed of by–you guessed it–starting a probate.

This is not to say no one should create a revocable living trust. But in my experience most people should instead create a valid will (with an attorney, so there are no mistakes that can’t be corrected after you pass on) and not worry about their heirs needing to go through the process of probate.

For a FREE consultation about a probate or a will, contact the Law Office of Gary M. Landau by email or call 954-979-6566. Attorney Gary Landau personally returns all calls to him.

Can wills prepared in another state or country be used in a Florida probate proceeding?

Last WillOften people die either residents of another state or country and own real estate in Florida or they moved to Florida but never changed their foreign will to a Florida will. The question is: Can these wills be used in a Florida probate proceeding after death? In Florida a will must be in writing signed by the Testator (the person whose will it is) in front of 2 witnesses who must sign their names after the Testator.

Generally, if a will is valid in the state or country where the decedent resided at the time the will was executed, than the will be admissible in Florida (with the exception of the holographic will see below). It’s helpful to get an affidavit from a licensed attorney from that jurisdiction to present to the Florida Court that the will seeking to be admitted was validly executed in the originating state.

A holographic will from another state (a handwritten will that was signed by the Testator) will not be accepted in Florida if it doesn’t have the 2 witness requirement even if it is valid in the state where it was executed.