What Options Do I Have to Avoid Probate?

Category: Probate Law | Trusts

What Options Do I Have to Avoid Probate

When you’re making plans for your estate, you want everything to be in order so that your family doesn’t have a hassle with anything. One of those “hassles” your family might have to deal with when you die is probate.

Probate is the legal process that takes place after someone’s death. Probate proceedings include:

  • Proving that the deceased person’s will is valid
  • Identifying and inventorying the deceased person’s property
  • Appraising the property
  • Paying taxes and debts
  • Distributing the remaining property as the will or state law says

On paper, probate seems easy enough, but it can be confusing, long, and expensive. That is why Florida has some options in place to help you avoid probate. Here are some of those options:

Living Trust

A living trust is a legal document similar to a will that places your assets into a trust. You will need to name someone to take over the trust after your death – a successor trustee – and then you have to transfer ownership of all your assets to the trust. After you’ve done that, your assets will be controlled by the trust. Then, once you die, your successor trustee will be able to transfer your assets to your beneficiaries without having to go through probate.

Joint Ownership

You can avoid probate if you jointly own property with someone else and the ownership explicitly includes the “right of survivorship.” After one owner’s death, the surviving owner will automatically own the property without probate. The surviving owner will still have to fill out some paperwork to show that they solely own the property, but they will have avoided probate.

There are two types of joint ownership in Florida:

Joint tenancy. In joint tenancy, people own property equally and the property passes to the surviving owners after one owner dies.

Tenancy by entirety. Tenancy by entirety is just like joint tenancy but it is only intended for married couples.

Probate Attorney Hollywood FL

Payable-on-Death Designations for Bank Accounts

You can add a POD – payable-on-death – designation to bank accounts in Florida. You control all of the money in your accounts – the POD beneficiary doesn’t have any rights to the money – but after your death, the POD beneficiary can claim the remaining money from the bank without having to deal with probate.

Transfer-on-Death Registration for Securities

Florida allows you to register stocks and bonds in a transfer-on-death (TOD) form. This is generally how people have brokerage accounts. If you have a TOD for a brokerage account, your designated beneficiary will automatically inherit the account after your death without probate proceedings.

You’re not allowed to have a TOD for vehicle registrations or real estate in Florida. There is an enhanced life estate deed called a Lady Bird deed that works like a TOD, but it’s not very common.

Even if you don’t plan to avoid probate, your estate may be able to go through Florida’s simplified probate proceedings for smaller estates. Your estate qualifies for these simplified proceedings if:

  • Your estate doesn’t have any real estate and all property is exempt from creditors, or
  • The value of your estate isn’t more than $75,000, or the deceased person has been dead for over 2 years.

Whatever you decide, it’s always beneficial to discuss your probate options with a qualified lawyer. Consult with an experienced Florida estate planning lawyer today to save your family the hassle of probate later.


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.