Understanding Florida Probate
You may have heard about probate, but do you really know what it is? Probate is the legal process of authenticating your Last Will and Testament after you die, assuming you left one. However, many people understand probate as being the entire process of having a person’s affairs settled after death. Under that idea of probate, there are three stages:
- If there was a will, it must be proven through the court process and an executor (called the personal representative in Florida) or administrator will be appointed.
- Collecting all the assets of the deceased, liquidating them, paying off their debts, and filing taxes, also called settling the estate.
- Distributing any remaining assets to the heirs and beneficiaries based on the terms of the will or the state law.
Probate is a lengthy, costly, and complex process which is why most estate planning attorneys will tell you it is better to try to prevent your estate from going to probate if at all possible. To do that, there are certain strategies that you can put into place well in advance of your death.
Strategies to Avoid Florida Probate
To avoid having your estate go through the process of probate in Florida, there are a few ways that you can do this:
- Transfer on death and pay on death designations
- Beneficiary designations
- Insurance policies
- Joint financial accounts
- Revocable living trusts
- Joint property ownership
- Lifetime gifts
- Summary administration for small estates, which is a simplified probate procedure
There is a long list of estate planning tools that can help you avoid probate. The challenge is knowing what tools would be best for your circumstances. That’s where an experienced estate planning attorney comes in.
Why Avoid Probate
Many people know that probate is a complex process and they’ve heard that you don’t want your estate to have to deal with the process, but why? The first issue is that, at minimum, probate takes at least six months to complete, even for a summary administration in many cases. If there are any legal challenges involved the time frame can increase dramatically and even take several years to finalize. This means that your heirs are going without the assets that they need to make it without you.
In addition, probate is expensive, and the longer it lasts, the more costly it gets. Once the cost of probate adds up, it typically costs some three percent, or more, of your estate. Some of these costs are capped by state laws, but if extraordinary services are required, fees can exceed the statutory cap.
Further, the status of your beneficiaries may lengthen and complicate the process. If a beneficiary is missing or has died before you, the probate process becomes more complicated. If you have left assets to a minor or incompetent beneficiary, a guardianship proceeding may need to be established in addition to the probate. If a beneficiary is receiving government benefits, such as Medicaid, then that beneficiary will have to hire an attorney to do additional planning for inherited assets or risk losing his or her benefits. A competent estate planning attorney can address all these issues while you are still alive, to ensure your wishes are met in a timely fashion after your death.
Why You Should Work with an Estate Planning Attorney
While you may be inclined to try to create your own estate planning using online tools, the reality is that estate planning isn’t that simple. Once you die, your family can’t modify the plan you put into place, which means that a bad planning strategy can actually end up being a burden for your family rather than the help that you planned.
Just as important, the estate planning process involves more than just handing the client a stack of documents. Beneficiary designations, payable on death designations, and change of ownership documents must be completed to ensure your wishes are met without probate. A competent estate planning attorney will assist with all the steps in the process.
That’s why you need to trust in someone that has more experience than you. Tampa estate planning attorney David Toback has years of experience helping his clients plan their estate. We will devote time to creating an estate plan that is tailored to your needs, which will give you peace of mind knowing that your family will be taken care of when you’re gone. Contact us today to schedule a consultation.
Resource:
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0733/Sections/0733.106.html
