Probate can be long, expensive and stressful. If you or a loved one passes away, then the last thing your family needs is legal proceedings that place strains on family relationships.
Each state has different options; here’s how to avoid probate in Florida:
Why Might You Want to Avoid Probate?
There are two common reasons why you might want to avoid probate: money and time.
Probate in Florida is a court process. It requires various hearings and proceedings. Even a seemingly simple task of gathering assets and paying off outstanding debts can take years.
This all places an unnecessary strain on your heirs and loved ones. Rather than benefiting from your wealth and assets, they won’t see any inheritance until probate is complete.
The wheels can slow even more if Will challenges are made and family disputes arise.
Finally, probate is a public process which means all your financial affairs become public. Anyone can find information about who received what from your estate. If you don’t want that, then you need to know how to avoid probate in Florida.
Ways to Avoid Probate in Florida Include:
Avoid Probate With a Living Trust
One of the most common ways to avoid probate is by setting up a living trust.
In Florida, you can establish a living trust and place virtually any asset within it – from real estate and cars to bank accounts or personal items. You retain control of these assets during your lifetime.
After your death (or if you become mentally incapacitated), a living trust appoints a Trustee who then gains control and must follow the conditions you wrote within the trust.
Best of all, your successor trustee can then transfer the Trust’s assets to your selected beneficiaries without probate – bypassing the slow court proceedings.
It’s important to note that any assets that are outside the Trust, will still require probate.
How to Set Up a Living Trust
To create a Living Trust, you need to create a trust document, name a Trustee and transfer all ownership of your assets to the Trust.
A Florida Trust administration attorney can help you create a Living Trust to support your family’s goals, while potentially minimizing estate taxes and more.
Joint Ownership
If you share joint ownership with someone else (with the ‘right of survivorship), the surviving owner will automatically own the property upon the other owner’s death.
This allows you to sidestep probate, although title paperwork will still be required.
In Florida, we have two types of joint ownership:
Joint Tenancy
Property owned under a joint tenancy will automatically pass to surviving owners when the other owner dies – without the need for probate. Joint tenancy is commonly used by couples who acquire assets together. The share of the asset must be equal.
Tenancy By The Entirety
Similar to a Joint Tenancy, but is only applicable for married couples.
Transfer on Death (TOD)
Transfer on Death (TOD) is a type of securities registration that allows you to pass your securities account to a beneficiary(s) at your death.
Any assets that pass to the beneficiary through TOD registration will be outside the probate estate.
For immovable property, a special form of life estate deed (commonly referred to as a ‘Ladybird Deed’) can be used. This deed will allow you to maintain possession of real estate while you’re alive before transferring the property to the beneficiaries without the need for probate.
If you’re interested in establishing a Transfer of Death, you should contact a Florida estate planning attorney.
Payable-on-Death Designation
In Florida, residents are allowed to add payable-on-death designations to checking accounts, retirement accounts, savings accounts, life insurance policies and more.
If you designate a beneficiary, the money in the account can be transferred to them without the need for probate.
This route is not always straightforward, however. With no rules or conditions over funeral expenses, outstanding taxes and other expenses, problems often arise fast.
This is why it is often wiser to set up a living trust – to ensure someone is in charge of the assets and expenses, all from one common pot.
As always, this is just one option that should always be discussed with a Florida estate planning attorney.
Gifting Your Assets
If you gift your assets while you’re alive, there will be no need for probate as you will no longer own the assets. This can also lower probate costs and potential estate taxes.
If you’re considering gifting your assets, you should contact a Transfer Tax Planning attorney.
Say Bye to All Your Florida Property
If you own real estate in Florida but aren’t a resident, one extreme option to avoid probate in Florida would be to get rid of all your real estate in the Sunshine state.
Without owning any property located in our state, Florida probate won’t be required.
Obviously, this is an aggressive option but one that could be utilized through gifting your property to beneficiaries or by selling it before your death.
Can a Will Avoid Probate in Florida?
A will does not avoid Probate.
This is a common misunderstanding made by people who have little understanding of estate planning.
That’s usually because, yes, a Will does set out the wishes of the Will creator, with designated beneficiaries and a road map to distribution.
But probate is still necessary with a Will. It is not self-implementing. Every Will must be reviewed and proofed by the probate court.
In some cases, probate and a Will may still be the best option for you. As always, speak to a Florida estate planning attorney for expert advice.
Always Speak to an Estate Planning Attorney
It’s highly advised that you always speak to a Florida estate planning attorney before making any decision. One misjudgment can be extremely costly and put your family’s wealth at risk.
The routes to avoiding probate listed here may or may not be suitable for your circumstances, and receiving expert legal advice will make things clearer and smoother for you and your family.
Contact a Florida Probate Attorney Today
Free Consultations
Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced attorneys, they can help you set up an estate plan that avoids probate and protects your family’s wealth.
Schedule a free consultation today to get started or to get any questions answered.
