4 Techniques to Avoid Probate

Category: Probate Law

4 Techniques to Avoid Probate in Florida

Probate is often a long, complicated, and expensive process.Click To Tweet

A central concern for many people planning their estate is sparing their families this hassle, and allowing the property to freely transfer to their next of kin.

What exactly is probate? It is the legal process that transfers a deceased person’s estate to their heirs. Simply put, it is how the Florida courts ensure that your affairs are settled and your property is distributed to the right people. The process usually will require your family to hire legal representation, and typically takes six months to a year.

How you plan your estate will have a considerable effect on the amount of time, effort, and money your surviving family members will have to spend during probate. Luckily, there are number of strategies your estate planning attorney will be able to utilize to help your heirs avoid probate court.

Avoiding Probate in Florida

In your estate plan, you can ensure much (if not all) of your property is transferred without requiring approval of probate courts. How?

Here are some of the estate planning techniques a skilled attorney may employ to help you avoid probate proceedings:

Simplified Probate Procedures. Some individuals may not need to plan extensively to avoid probate. Florida has a simplified probate process for small estates.

A personal representative must file a request with the local probate courts.  If the court approves the request, the personal representative can distribute the assets to your heirs without the need for probate.

To qualify for simplified probate, the estate must meet the following criteria.

  • There is no real estate being transferred. Additionally, all the property must be exempt from creditors’ claims except amounts needed to pay funeral and two months’ last illness expenses.
  • The value of the entire estate subject to administration in Florida, less the value of property that is exempt from creditors’ claims, doesn’t exceed $75,000, or the deceased person has been dead more than two years. A petition must be filed with the court.

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Living Trusts. For larger estates, more creative maneuvering will be required to avoid the lengthy and expensive probate process. One technique that can quickly transfer assets is the utilization of living trusts.

In Florida, you can make a living trust for nearly every asset you own, including real estate, bank accounts, and vehicles. How? A trust document. This is somewhat similar to will, and it names the person who will control the trust—and the property within the trust—after you pass away. This person is referred to as the “successor trustee.”

To use a living trust to pass on your assets, you must first create a document and transfer ownership of the property to yourself as “trustee.” This allows you to maintain control of the property in the trust during your lifetime.

After this, the property is controlled by the terms of the trust. When you pass away, your successor trustee will be able to access the property in the trust without requiring approval from probate courts.

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Joint Ownership. Joint ownership is another technique that can be used to avoid probate. If you co-own property with another person, they may be able to succeed ownership of your share of the property. The ownership must include the right of survivorship.

There are two different types of joint ownership in Florida:

Joint tenancy – Property owned in joint tenancy will transfer automatically to the surviving owner without the need for probate. This works well for real estate, vehicles, bank accounts, or other valuable property. For joint tenancy to apply, each partner must own an equal share.

Tenancy by the entirety – This form of joint ownership is similar to joint tenancy, but is allowed only for married couples in Florida.

Naming Beneficiaries. Certain accounts can be designated “payable-on-death” (POD) to another person, or passed on by designating a beneficiary.

Bank accounts like savings accounts or certificates of deposit (CDs) allow you to designate another person for POD status. You still will have complete control of the money within the account, and can spend it however you like.  When you die, however, the designated person will gain control of the financial assets in the account without the need for probate.

Other accounts like retirement or life insurance accounts allow you to name a beneficiary for the assets therein. These assets can also transfer easily to your beneficiary without probate proceedings.

Estate planning can be confusing, but it is an essential process. An experienced estate planning attorney can provide you with the necessary tools and counsel to transfer your estate safely and hassle-free to your heirs.

About the Author:

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.