Common Probate Myths

There are commonly held misconceptions about avoiding probate which may lead to uniformed decisions resulting in the need to open a probate administration.  While the best way to avoid probate is to speak with an experienced estate planning attorney, let’s debunk a few probate myths.

I’ll leave my home to my children through a will to avoid probate.  This is the most common of all estate planning myths!  Inherited property cannot be retitled or sold without approval of the court, which requires opening a probate administration for the deceased.  There are, however, ways to avoid this including the creation of a new deed where your property eventually passes to your heirs, or retitling your home to your trust. (An estate planning attorney can help determine the best option.)

Adding my adult child to my deed is a great way to avoid probate.  While your property will indeed pass without probate after you die, there is much risk when adding someone to your deed.  The child’s interest in the home is not shielded from creditors via Homestead protection if it is not their primary residence. Your child’s creditors can place a lien against your property.   A fractional interest in the property owned by a person who does not reside there does not qualify for Homestead tax benefits, so your property taxes will increase.  And as your child is listed as an owner, they must sign off on any decision to sell or refinance the property.

Can I obtain the necessary forms and submit them to the probate court myself without the expense of an attorney?  In Florida almost all probate cases require an attorney.  There is a narrow exception for very small estates where the amount of assets is only sufficient to pay for the funeral and final expenses of the decedent.

My cousin’s estate was settled in just a few months in Michigan, so I’m expecting the same experience in south Florida.  Probate for most simple estates can be settled within a year, however.  because of staffing shortages and backlogs in Miami-Dade and Broward counties, the process can take as long as 18 months.  More complex estates may take several years to settle.

I created a revocable living trust to avoid probate.  A revocable living trust can help you avoid probate, but only if your trust is fully funded.  With some important exceptions, all of your real property, personal property, cash and investment accounts, and business interests should be transferred into your trust while you are alive.  If your trust is not properly funded, many assets may still have to go through probate after your death before reaching your trust and its beneficiaries.

Life can change in an instant.  What are you waiting for?