Many people ask why they should avoid probate, as it’s a very common step in handling a loved one’s estate. While probate is great for protecting many estates, it’s also not optimal for every family and every estate.
Probate is often long, expensive and stressful. For many families, the last thing they’ll want after a loved one passes away is tense legal proceedings.
Thankfully, there are ways to avoid probate in Florida. In this guide, our Florida probate attorneys will explain why and how you can avoid probate.
Remember, you should never make important estate planning decisions such as these without first speaking to a Florida probate attorney.
What Is Probate?
Probate is the legal process of proving a will. The document is reviewed to determine if it is authentic and valid. Probate also includes administering the deceased individual’s estate as per the instructions in the will, or if there is no will, per Florida intestacy laws.
Probate also includes gathering and collecting assets, notifying creditors, paying remaining debts and distributing the assets to beneficiaries.
Read our guide on Florida Intestate Succession Laws here.
Why Avoid Probate in Florida?
Just like every other state, probate in Florida has two major downsides:
- Assets are not accessible for months, possibly years.
- It can be expensive.
Probate is Slow
The main reason people like to avoid probate is that it is time-consuming. As probate involves the courts, things don’t move quickly. While probate can be completed in just a few months, many cases require at least one year and potentially many more.
There are famous cases of probate that lasted for years and even decades. For example, country singer John Denver’s probate estate continued for over six years. During this time, no one in his family saw a cent of inheritance.
While not every case is as extreme, it only takes one complication to cause major halts. Complicated estates with many assets and interested parties are particularly prone to slow probate processes.
No one wants to wait years for their inheritance. Avoiding probate can ensure your loved ones access your family’s wealth fast and smoothly.
Probate Is Costly
The probate process can also turn out to be very expensive. Various probate fees may arise, including:
Executor Fees: The probate court will usually compensate an executor for their work in administering the estate.
Attorney Fees: Attorney fees may be required for legal assistance. If, for example, a surviving family member feels there is unfair behavior involved, fraud or any other accusation, then a legal battle may begin. These battles require Florida probate attorneys to be paid, via the estate. Considering that these fees are often a percentage of the estate, the total sum can get very big, very quickly.
Other Probate Costs: In most cases, there are also court fees, appraise fees, travel costs and other expenses.
Probate is Public
When you pass away, do you want your finances, assets and debts to be made public? That’s what happens during the probate process.
As the courts manage probate, all information is placed on public record. Even distribution information will be viewable by anyone and everyone.
This information can put your family at risk of burglars and scammers. For example, would you want the public to know that your classic car collection now belongs to your son? Or that your sister now has various expensive pieces of jewelry?
And do you want people to know about your outstanding debts?
These are all questions worth considering when deciding if you should avoid probate.
Probate is a Court Process
Probate is a court-supervised process. While that ensures every will is valid, legitimate and protected from selfish behavior, it lines the process with stumbling blocks.
Tasks such as appointing a personal representative, approving inventory, settling disputes and paying creditors are fraught with rules and laws that must be followed.
If one of these areas has an issue, the entire probate case can halt and leave further formalities to be followed.
Finally, it also requires that your will is 100% water-tight. If it’s not been properly witnessed and signed, it could be invalid from day one.
The Benefits of Probate
There are counterarguments to avoiding probate, however.
- Probate allows you to close out creditors from an estate within 90 days – which is considerably shorter than the two-year window allowed for creditor claims on assets held in trusts.
- Probate allows surviving family members to challenge the validity of creditor claims in court. This can be of great use to families experiencing greedy creditors asking for unnecessary debts to be taken from the estate.
- Surviving family and friends don’t always easily agree on how an estate is handled. Accusations of foul play and lacking a ‘sound mind’ when creating the will are common. Probate offers a route to settling family disputes in a court, with an impartial judgment provided.
How to Avoid Probate in Florida
Thankfully here in Florida, there are several estate planning routes you can utilize in advance so your family can avoid the probate process:
- Living Trust: By placing an asset in a living trust, you can ensure assets pass to selected beneficiaries without probate.
- Joint Ownership: Property owned in joint ownership allows the surviving owner to automatically own the property after your death without probate.
- Transfer on Death (TOD): This type of securities registration allows you to pass your securities account to your heirs at your death without probate.
- Payable-on-Death Designation: Residents in Florida can add payable-on-death designations to assets to allow money to be transferred without the need for probate.
- Gifting: Gifting assets during your life can allow your loved ones to avoid the probate process as you’ll no longer own the assets.
Read our guide on how to avoid probate in Florida here.
Contact a Florida Probate Attorney Today
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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.
