The subject of probate can be intimidating. Ask any attorney and they will give you these simple words of advice: Avoid it. But what are we avoiding?
With or without a will, assets will be distributed. The main difference is with a will you get to choose who your assets are distributed to. Understanding that there are exceptions, and it is always wise to consult with an attorney skilled in probate, here are the basic facts and the very least you should know.
What is Probate?
Probate is the court-supervised process for managing the final financial matters of a deceased person (decedent). This includes payment of outstanding debts and distributing assets to beneficiaries. Probate assets are assets owned by the decedent at the time of death that lacked a succession plan. For example, a house that is only in the name of the person who passed away or was co-owned by the decedent and several other people without directions for ownership after one owner dies.
Other Probate Assets
Bank accounts
Investment accounts
Life insurance policy
Some probate assets like bank accounts, investment accounts, and others can avoid probate simply by having a revocable living trust as the owner or beneficiary. Taking this one extra step can help avoid probate.
Is a Will Necessary?
A valid will helps the court efficiently transfer ownership of assets to the named beneficiaries. When you draft a will, you decide who gets what from your estate. Dying without a will, which is called “intestate,” forces the court to distribute any probate assets to your heirs in the order outlined in the Florida Statutes.
Regardless of the size of your estate, there are several benefits to drafting a will. Even if you aren’t married and have no children, this is an important document to include in your planning documents. Without leaving directions for distributing your property, your assets are distributed in the predetermined order – after all your debts are settled.
3 Reasons to Avoid Probate
- You can pick your person.
- Divide your assets as you please.
- Let them resolve your estate and move on.
1. Choose the personal representative you want to handle your assets.
With a will, you can choose a family member, bank, or an attorney to be the personal representative for your probate estate. If they meet the statutory requirements, the judge will issue “Letters of Administration” that show your person has the authority to administer your estate. What happens without a will? The judge will appoint a representative in the order predetermined by the state, starting with a spouse and moving on to your heirs if a spouse is not available or willing.
Tasks for a Personal Representative
Safeguard probate assets
Notify creditors of claim timeframes
Pay valid claims
Pay expenses of estate
Distribute probate assets
Close probate estate
These tasks can be frustrating and time-consuming. You will want to appoint someone who is able to complete these tasks, and others, competently, and in keeping with your wishes. If you don’t feel comfortable appointing a family member, you can appoint a non-family member or attorney. Whoever you pick is entitled to reasonable compensation from your estate, so choose wisely.
2. Assign your assets as you wish.
The court isn’t often concerned about who gets your collection of colorful quilts or early American wares. Your will or separate writing can outline the household and other items that are not considered a probate asset. As mentioned previously, a properly drafted revocable living trust is a quick and easy solution to let you control where your assets go.
Pay close attention to how your property is titled. In Florida, property that is titled with both spouses as tenants by the entirety means that both spouses hold an equal interest in the house and the surviving spouse automatically retains ownership. A title that lists only the decedent will require a probate to be opened to transfer the title. If the property is homestead property, then there are additional rules on who can inherit it. You can avoid having to probate real property with a revocable living trust.
3. Avoiding probate lets everyone move on.
Losing someone you love is difficult. When that is compounded by many months and even years of settling their estate, it is made unnecessarily harder. Clearly outlining your wishes in estate planning documents, such as in a revocable living trust, relieves your loved ones of the frustration of the lengthy court process of probate. Additionally, those assets listed in the trust can usually be distributed much quicker than those that go through the probate court.
Have you remarried or had children since you last updated your will? You want to be sure everyone is added appropriately to your will. You may be gone but you can help them honor your memory with thoughtful estate planning.
How Do I Avoid Probate?
A knowledgeable Elder Law Attorney can help you determine the best path forward. You may not feel like your estate has any value, but YOU are your estate – and you have value. A large part of advance directives takes into consideration what happens to you when you are no longer able to make decisions. So, think of the process of a will and probate as more than safeguarding your property but your legacy as a person.
Find a local, reputable Elder Law Attorney and start by scheduling a consultation. Asking questions is an important part of exploring which estate planning strategies will work best for you. An attorney who specializes in Elder Law has a depth of knowledge in the areas of law that impact seniors, making them a vital part of your aging plan.
A robust knowledge base and a passion for serving seniors are two reasons why Elder Law Attorneys are a Resource We Love. Find out more about probate, advance directives, and why having an aging plan is important in the Legal and Financial Section of our Blog.