The Alternatives to Probate in FloridaPosted on January 5, 2023, by Nicholas Medley
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You worked hard your whole life to save for your future, and every dollar earned was time you had to spend away from your family. Now, as you’re planning your estate, you want to make sure they get everything they deserve as soon as you pass away. Unfortunately, one legal process stands in your way—probate.
Of all the bureaucracy surrounding inheritance and estate, probate is one of the most frustrating to many Floridians. However, it’s important to remember that it serves an important legal function. Luckily, there are several legal strategies for avoiding probate, and we can help you find them.
At Medley Law Firm, we know that estate planning is complex, and that navigating it without assistance can be challenging. Our experienced estate planning attorneys can help you find viable alternatives to probate that protect your assets while prioritizing your privacy. Ready to get started? Keep reading to learn more about your options.
Although last wills and testaments are subject to probate, they aren’t the only tools at your disposal. When you’re looking for alternatives to probate, there’s no better time to contact our skilled estate planning attorneys. Call us at (850) 607-7890 to schedule a consultation.
What Is Probate?
Probate is a legal process by which a Florida court identifies the debts and assets that were owned by a decedent (a person who’s passed away). The probate process also ensures that assets are transferred to the proper beneficiaries.
Purpose of Probate
The probate process exists to ensure that the decedent’s assets are distributed according to their wishes and that beneficiaries can receive property without it being subject to creditor claims. Although it serves a necessary purpose, it can be a costly, time-consuming process.
Types of Probate
Florida law outlines two types of probate: summary administration and formal administration. Summary administration is typically less complicated, requires less documentation and takes less time than formal administration—three to six months vs. six to 18 months, respectively.
One of the main distinctions is that in summary administration, the court doesn’t appoint a personal representative, which life insurance and retirement plans generally require. Conversely, the court does appoint a personal representative in formal administration, and that person is tasked with gathering information regarding any debts or assets belonging to the decedent.
At the end of the day, a formal administration takes longer, costs more and requires more steps to settle than summary administration. The best method for you will ultimately depend on the total value of the decedent’s assets, their debt and whether there is pending litigation against their estate’s assets.
Avoiding Probate in Florida
Like many legal processes, probate can be kind of a pain, especially if you weren’t expecting it. In addition to tying up assets in court for months, it forces beneficiaries to deal with legal forms, lawyers and numerous court visits. And as if that weren’t enough, probate is often the stage for disgruntled family members to instigate long court battles over inheritance disputes.
If you’re like most people, you don’t want to put your family and loved ones in such an uncomfortable situation. Luckily, there are ways to prevent probate issues after you pass away. An experienced probate attorney can present you with several proven strategies and suggest the best approach for your specific goals.
A living trust (also called a revocable trust) is one that can be changed and even terminated during the grantor’s lifetime. When the grantor passes away, the trust allows assets to be automatically transferred to beneficiaries without having to go through probate. As a result, the trust and its beneficiaries do not become public record.
However, it’s important to note that living trusts have some downsides as well. They’re vulnerable to creditors (at least during the grantor’s lifetime) and offer no particular tax advantages. Living trusts are also more expensive and complex to draft. Ultimately, they’re not ideal for small estates but can work well for larger estates to avoid probate.
Life insurance offers another way for beneficiaries to receive assets directly. Beneficiaries listed on policies can collect proceeds directly from the insurance company without having to go through the probate process. However, this only applies to legal adults; insurance companies are unable to give funds directly to minors.
Joint Tenancy with Rights of Survivorship
This approach allows for the seamless transfer of a property title without ever having to step foot in probate court. It allows two people (whether married or not) to own a property title together with the understanding that they have equal rights to the property. When one of them passes away, the title is immediately transferred to the surviving partner in the agreement.
Payable-on-Death Designations for Bank Accounts
Florida law allows you to add something called a “payable-on-death” designation to certain bank accounts, like savings accounts or certificates of deposit. You still own the account and all the money in it and can spend as much of it as you want. After you pass away, your beneficiary can claim what remains in the account and collect it directly from the bank without having to go through probate.
Life Estate Deeds, Ladybird Deeds, and Transfer-on-Death Registration for Securities
Although in most cases (specifically without a Life Estate Deed or Ladybird Deed), Florida law does not allow you to transfer assets like real estate deeds and vehicle registrations upon your death, it does allow you to register a brokerage account to be transferred to a beneficiary. After you pass away, they will automatically inherit the account and will deal directly with the brokerage firm to complete the transfer rather than go through probate.
Real estate can also be set up to transfer to someone else automatically upon the death of the property owner via either Life Estate deeds or Quit Claim Deeds with Enhanced Life Estate (more commonly called Ladybird Deeds).
Florida Probate FAQ
As you can see, the laws surrounding probate in Florida are complex. If you have specific questions regarding probate and how to avoid it, the best thing you can do is speak with an experienced probate attorney in Pensacola. In the meantime, read through our FAQ.
What are probate assets?
Probate assets are ones that were owned solely by the decedent at the time of their death and had no provisions for succession of ownership. These assets can include bank accounts in the sole name of the decedent, any policies payable to the decedent’s estate, real estate titled in the sole name of the decedent and much more.
What happens to probate assets when there isn’t a will?
In the absence of a will, the spouse will take all assets, even if there are living children of the deceased person and the surviving spouse. However, if the decedent doesn’t leave behind a will but does leave behind a surviving spouse and children who are not theirs, the estate will be divided in half. Half of the estate will go to the surviving spouse, and the other half will be split among children.
In situations where there is no surviving spouse or descendants, the assets go to the decedent’s surviving parents. If there are no surviving parents, the estate goes to the decedent’s surviving siblings. The law outlines further disposition if there are no siblings.
How long does probate take?
Estates that are not required to file a federal tax return and don’t involve litigation can close in as little as five to six months. However, more complex estates may spend as many as 15 months in probate.
Who supervises the probate process?
A Florida Circuit Court Judge presides over probate hearings and appoints a personal representative to deal with the actual administration of the estate.
What is a personal representative and who can be one?
A personal representative is a person, bank or trust company that is appointed by the court to administer the estate according to Florida law. This person is often called an executor or executrix. In addition to a bank or trust company, a personal representative can be a Florida resident or a spouse, sibling, parent, child or other close relative of the decedent.
Need Alternatives to Probate? We Can Help
At the end of the day, most people just want to know that their family members and loved ones will be provided for and receive all of the inheritance they deserve. However, as probate can eat into that inheritance and delay its disbursement, many people would rather find a way to avoid it altogether.
If you need alternatives to probate, there’s no better option than Medley Law Firm. Our estate planning experts know the ins-and-outs of probate law in Florida and can help find the solutions that give you peace of mind.
Ready to get started? Give us a call at (850) 607-7890 or contact us online to schedule a consultation with our compassionate legal team today.