The death of a loved one can be a very stressful and emotional time for anyone, and this can be made more difficult when having to deal with probate. Probate can be a challenging process to deal with, but also a cumbersome and sometimes complicated process as well, but we’re here to give you advice to help you on how to avoid probate in Florida.
There is a way to avoid the entire probate process altogether. People have been taking steps to prevent any unnecessary hassle in the event of their deaths, and while other states may differ in how to prevent probate, we have the best tips and information for Florida citizens trying to avoid probate in the future.
What is Probate?
Probate is a process supervised by the court to identify and gather the assets of a deceased person, also known as a decedent. The process also includes paying the decedent’s debts, and distributing the decedent’s assets to their heirs/beneficiaries.
Currently there are two types of probate administration under Florida Law, formal administration and summary administration. Probate administration only applies to probate assets, which are assets the decedent owned in their sole name at death, or were owned by the decedent and others (co-owners) and lacked a provision for automatic succession of ownership at death. Assets can range from a bank account to real estate in the sole name of the decedent.
Probate is an important process to pass ownership of the decedent’s assets to their beneficiaries if they did not leave a will, but also to complete the decedent’s financial affairs to ensure their creditors are paid. To file for probate, a fee is required and it is filed with the clerk of the circuit court in the county the decedent lived in before time of death.
How long does Probate take?
The probate process in Florida can vary in time taken depending on the type of probate. Formal probate administration can take around 6 to 9 months under most circumstances, and usually takes place if the value of the decedent’s property was $75,000 or higher.
The other type is Summary probate administration, which can take less than a month under the right circumstances. This is typically reserved for smaller estates that are valued less than $75,000 and have no debt whatsoever.
Why should I avoid probate in Florida? Reasons to Avoid Probate
Now that you’ve read about the probate process, are you considering taking steps to avoid it in the future? If not, we have plenty of reasons to convince you why you should avoid the process altogether. After all, with such a complicated and stressful process just after a loved one’s death, the last thing you’ll want to do is to process all of this during your grief.
Probate is Time-consuming and cumbersome
As stated earlier, some probate processes can take up to 9 months to complete if the estate of the decedent is over $75,000, and if there are any illiquid assets then this can take longer than a year overall. You may end up dealing with probate for a long while after your loved one’s death.
The Probate process can be expensive
While the fee for filing probate won’t break the bank in terms of cost, the legal fees and personal representative compensation will start to pile up and make a dent in your wallet. Those fees are set by statute and can usually become quite expensive, especially if the decedent’s estate is large and complex – this will only increase the probate fees.
You may not have realised but the probate process is a legal process which must be filed in a public court record. This means that anyone can view the proceedings, either online or in person. Understandably, many families wouldn’t appreciate people seeing how much their descendants have left them, much less viewing what could be some very emotional moments for the family and friends present,
Court Control and administration
The probate process is regulated by court proceedings, which means that your personal representative will have to request court permission in order to administer certain assets, which can include your real property. As such, this can affect any homes you have for sale as potential buyers are hesitant to purchase them. They know that it can take months before the court will grant the representative permission for the property to be sold, and that’s longer than they’d like to wait.
Does a Will Avoid Probate in Florida?
Unfortunately, having a last will and testament upon death cannot ensure that your assets will avoid probate in Florida. The last will and testament is used to distribute your probate assets to the correct beneficiaries, whereas the assets in the decedent’s own, individual name, have to go through probate.
Methods to Avoid Probate
There are several methods that you can look into for avoiding probate in the future and bypassing the entire process. Have a look through the options below to see what fits for you, since everyone’s situation can be entirely different, and don’t forget to discuss your plans with your attorney!
Joint Tenancy/Joint Ownership
In the event you own a property with someone as joint ownership, and this ownership includes the “right of survivorship”, then the surviving owner will automatically own the property when the owner dies. Probate is not necessary to transfer the property though you will still need to fill out paperwork to show the title is being held by the surviving owner.
You can either have joint ownership, which is only allowed for married couples in Florida, or joint tenancy, which is when two individuals agree to own an equal share of a property. Setting up joint tenancy is relatively easy to do and won’t break your bank.
While it has its advantages in avoiding probate easily, if you’re adding a joint owner to an account or deed, it is classed as a taxable gift and needs to be reported to the IRS on a federal gift tax return. In addition, if a joint owner is sued or divorced, then their assets may be taken from the joint account/real estate in judgement proceedings.
In Florida you have the option to make a living trust in order to avoid probate for almost any asset you own, such as real estate or bank accounts. When creating a living trust document (similar to a will) you need to name someone to take over as trustee after your death then you must transfer ownership of your property to yourself and name yourself as the trustee of the trust. When you’ve completed this, the property will be controlled by the terms of the trust and, in the event of your death, your successor trustee will be able to transfer assets to the beneficiaries without any probate proceedings.
This is one of the more popular and easier ways to avoid probate proceedings, as the trust effectively works similarly to probate – just with more privacy and a trusted individual to arrange your estate and assets.
This method is simple and easy and helps you avoid probate without costing more than simple attorney fees. If you have a life insurance policy, or assets in an IRA, 401(k), or annuity, you can designate a beneficiary on these assets without worrying about probate proceedings after your death.
Upon your death, your life insurance proceeds will be paid directly to the designated beneficiary and the same can be said for the other assets. You can discuss this with whomever you hold the asset with (for example, the life insurance company) and promptly get a beneficiary signed on the asset.
Florida “Lady Bird” Deeds, and Life Estate Deeds
Lady Bird deeds in Florida are also known as Life Estate Deeds to help you avoid probate proceedings. The lady bird deed allows one or more people to have possession of a specific property for life, with the remainder to pass to another when the first owner dies. The lady bird deed differs from a traditional life estate deed by allowing the original owner to change their mind without involving the intended beneficiary.
To create a lady bird deed, you must sign a deed transferring your real estate to someone, but retain your right to sell the property, use it, or deal with it during your lifetime. When you die, the beneficiary of the deed will inherit the property, without the need for probate.
While this can help you avoid probate and can help you change beneficiaries without speaking to them (in case your fall out with each other), there are some Florida insurance companies who won’t insure lady bird deeds that exclude one child from inheriting property or giving it to one or more children as title issues can arise.
Sell all your Florida Real Estate
Selling your real estate in Florida is a great way to leave less things for your family to be concerned about, especially if they don’t want to inherit the property. While you have the choice to sell via a real estate agent, we’d recommend selling to a real estate investor for a quicker sale, especially useful for when you just want to get things in order.
Your Trusted Home Buyer is exactly the type of real estate investor you’re looking for to help you with this. We’re able to buy houses and process them quickly while making sure homeowners get a fair cash offer and don’t have the hassle behind waiting for buyers and paying real estate agent fees.
Don’t worry about the probate process in Florida any longer – these methods are sure to help you out in sorting your estate privately and the way YOU want them done, rather than through the public eye of the courts. You can even get your affairs and debts in order by selling your property through us, and taking the market value cash offer to save your family paying your debts instead. To find out more, check out our website and contact us!