If you live in Florida or are considering retiring there, you should educate yourself on the ins and outs of wills, trusts, and probate law. Knowing about these topics and planning ahead can ensure that you preserve as much of your estate as possible for the beneficiaries you choose. In order to educate yourself, you'll need to understand probate itself and understand how the use of well-drafted legal documents prepared ahead of time can avoid the pitfalls of the probate process.
What is Probate?
Probate is the judiciary procedure through which the judge will evaluate and prove a person's will to the satisfaction of the court. Understanding probate rules in Florida will provide you with a good sense of why it's best for everyone involved to avoid the process altogether. All probates in Florida go through four stages. These stages include ensuring that the will was done according to Florida law, gathering and documenting the decedent's assets, reaching out to creditors to pay the decedent's outstanding debts, and distributing the remaining assets to the beneficiaries according to the decedent's wishes and state law.
Probate in Florida can take anywhere from two weeks to two years. In general, simple estates can take up to three months with two or more years required for complex estates. The time frame can also be affected by disagreements between beneficiaries and subsequent litigation. During this time, beneficiaries often do not have access to the funds or assets of the estate. Obviously, this can prove incredibly inconvenient if the beneficiaries require access for any reason. In contrast, creditors are allowed to claim the estate.
Many people assume that having a will in place will allow beneficiaries of the deceased to avoid probate. In Florida, this isn't necessarily true. While a will can be a helpful guide to the probate process, it does not avoid the process entirely. The will is a document that the probate court will utilize as a guide to the process, but it doesn't necessarily shorten the time required for the probate to be completed.
Types of Probate in Florida
In Florida, there are four different forms of probate. A number of variables may determine which form is used for an estate. While the size of the estate plays a role in determining the form, so too may the types of assets involved. Whether or not the estate is litigated may also determine the form of probate.
The four forms of probate are formal administration, summary administration, ancillary administration, and disposition without administration. Formal administration is when the decedent's assets are greater than $75,000 and the probate is being done within two years of the person's death. Summary administration typically takes less time and can be utilized if the decedent died over two years prior to filing. In these cases, assets must be less than $75,000. Ancillary administration is probate that is done in Florida only for assets owned in Florida. In these cases, the decedent was a resident of another state. Finally, Disposition Without Administration is rarely used. Essentially, there are very few instances when this form applies and when it does, it is for the distribution of a very small amount of assets.
No form of probate is simple and the best way to ensure that your estate is preserved as intact as possible for your beneficiaries is to avoid all four. It makes much more sense to consult an expert before your death to make the best arrangements possible. This will help to avoid an expensive and inconvenient process after your death.
How to Avoid Probate in Florida
There are several strategies that you can utilize to avoid probate in Florida. One is to establish a living trust. A living trust allows you to place all of your assets into a trust and appoint a trustee. While a trust is binding and may allow your estate to avoid probate, a trust can be modified by you at any time before your death.
Placing your assets in joint ownership with survivor rights is another way to help keep them from going through the probate process in the event of your death. You can add a joint owner to bank accounts, savings accounts, and property deeds.
Regardless of the size of your estate, you owe it to yourself and your beneficiaries to plan ahead so that your wishes are carried out in the most timely manner possible. No matter what type of estate planning you choose, you will benefit from consulting with experts who can guide you through the process and customize a plan to your specific needs. Remember that it's never too early to begin estate planning. Many of the plans you make can be adjusted or changed as time passes. You have options, and a trusted advisor can help you navigate them.