“Probate is a lawsuit I file against myself after I die, at my own expense, for the benefit of my creditors and my heirs.”
When a loved one passes away, his or her estate goes through a court-managed process called probate administration whereby their Will is evaluated by the court to determine if it was validly drawn and executed. Assets of the deceased are then collected, debts and taxes are paid and what remains is distributed to beneficiaries. Without probate administration, bank and investment accounts of the decedent are frozen. Furthermore, any real estate owned by the decedent may not be sold until authorized by the court.
Probate administration involves the following steps:
- Collecting and securing estate assets
- Locating the original Will
- Retaining an attorney (required by Florida law)
- Filing of a Petition for Administration with the proper Probate Court
- Giving Notice to Beneficiaries under the Will or to statutory heirs (if no Will exists)
- Filing a petition to appoint a Personal Representative
- Preparation of inventory and appraisal of estate assets by Personal Representative
- Publication of Notice to Creditors in local newspaper
- Determination and payment of estate debts to rightful creditors
- Payment of taxes, if applicable
- Distribution of assets to beneficiaries or heirs
Probate administration is:
- Expensive. Typically 5% to 8% of the value of the assets in the estate.
- Time consuming. In south Florida, even the simplest probate administration takes up to 12 months or longer.
- Open to the public. Court records may be viewed by all.
Can probate administration be avoided?
Yes. You can own all assets jointly with others, or have all accounts established with designated beneficiaries. While this approach seems like the best and easiest solution, it may not be. Joint ownership or beneficiary designations severely limit your ability to control exactly who will receive your property, when they receive it, and how the property is to be managed. Moreover, if you have young or unsophisticated beneficiaries, their inheritance may be squandered, subject to creditors or lost through divorce.
Creating and funding a revocable living trust is an excellent way to avoid probate administration. A revocable living trust allows you to control what you have so it is given to whom you want, when you want, in the way you want, and all at the lowest overall cost to you and your loved ones. There are situations, however, where a revocable living trust may not be appropriate. We recommend that you consult with an experienced estate planning attorney to explore all options and establish a plan that works for you.
Life can change in an instant. What are you waiting for?
