When someone dies, their assets must be distributed by law. If not handled privately or with prior planning, this is done through a legal process called probate.
The probate process is often time-consuming and stressful for family members. What exactly is probate, and can it be avoided to ease the burden?
Understanding probate
Probate is the legal procedure in which a court manages how a deceased person’s assets are allocated. It helps in collecting debts and settling disagreements among beneficiaries. The process, known as Formal Administration, usually spans six to twelve months due to a required creditor period and different administrative steps. However, contested cases or complicated estates can take much longer. Smaller estates may qualify for a simpler, more streamlined process. Probate can take place whether or not there is a will.
Is there any way to avoid probate?
Yes, there are strategies to bypass probate. They include:
- Trusts: Most types of trust bypass the probate process and are administered privately by the trustee. A common type is a living trust, also known as a revocable trust. This document allows a person to transfer assets into a trust while alive, with instructions for management, trustee appointments and distribution after death
- Lady Bird deed: Known legally as an Enhanced Life Estate Deed, this arrangement enables the owner to retain control of their property throughout their lifetime while naming a beneficiary to inherit it after their passing.
- Account beneficiaries: For financial accounts, retirement assets and insurance, setting beneficiaries with POD (payable-on-death) or TOD (transfer-on-death) designations can exclude them from probate.
- Joint ownership: Certain types of joint ownership, such as Joint Tenancy with Right of Survivorship (JTWROS) and Tenancy by the Entirety (for married couples), avoid probate since the surviving owner automatically receives the deceased’s portion
Other options, like gifting assets during one’s lifetime, are available but should be discussed with a lawyer.
Estate planning can help
To avoid probate in Florida, it’s crucial to be informed and develop an estate plan covering all assets. A knowledgeable legal team can assist throughout the process to ensure everything runs smoothly.