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Avoiding Florida Probate

FinanPlan

You’ve likely heard before that you should avoid probate if possible, but are you really clear on what exactly probate is? Probate is the process of settling a decedent’s estate (paying off all debts with assets, locating all assets identified in the will and testament) and distributing their property to their heirs.

Why Some People Choose to Avoid Florida Probate

The probate process is supervised by a court, and can take several months or years, depending on the specific circumstances of the case. While an estate is pending in probate, no inheritance or assets can be administered, which can leave heirs frustrated and the decedent’s family in a precarious financial situation, unable to continue to afford their cost of living and without access to any of the decedent’s assets.

Additionally, as noted above, probate is a court-supervised process. This means that it can become very expensive, particularly when the proceedings are extending for years. The decedent’s assets can be used to pay the court costs, so the longer the court proceedings continue, the less assets are available to pass on to the beneficiaries, and the less of the decedent’s wishes are able to be honored.

How to Avoid Probate in Florida

In order to avoid probate in Florida, you must either alleviate yourself of all property in Florida prior to your death, as this will remove you of the residency requirement for Florida probate, or you must pass your assets directly to your heirs. There are a number of legal means and mechanisms that allow you to achieve this end.

  • Joint ownership. By adding someone to your bank account, home, car, or other assets as a joint owner with survivorship rights, you avoid having to put the asset through probate, because as soon as you die, it switches from being jointly owned, to being wholly owned by the surviving owner, so it is no longer your asset to pass on.
  • Beneficiary Designations/”Pay on Death” Accounts. In Florida, you have the ability to name a beneficiary for bank accounts and non-retirement investment accounts. If you name a beneficiary for one of these accounts, the contents will be transferred to that individual upon your death. In this way, it is able to side-step the probate process.
  • A Revocable Living Trust. A revocable living trust is created while you are alive. You place assets into the trust, and the trust becomes the record owner of the assets. This allows the assets to avoid probate in Florida.

Each of these options offers an array of benefits, but also has a number of possible complexities that must be assessed in the context of your specific situation. For instance, joint ownership can have implications for tax and divorce, and a living trust can be complicated to establish. For this reason, it’s critical to work with an experienced Florida Estates attorney, and be open about your long-term goals and wishes so that they can make sure to help you achieve them.

Speak with a Florida Estates Attorney

If you are considering a living trust, will, or are in need of an estate plan, the Law Offices of Larry E. Bray are here to help. Larry E. Bray is an experienced West Palm Beach estate planning lawyer. Call today and schedule a consultation.

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