What is Probate and Why Do You Probably Want to Avoid It?

By on April 5, 2021

With mass amounts of elderly retiring in Florida, probate is something that needs to be addressed. When you die probate is the court process by which your assets are identified, gathered and secured, your debts and taxes paid, and your remaining assets distributed to your heirs. In addition, probate is the period during which someone can challenge the last will and testament you made prior to your death. If you had no will, probate represents the process by which the state in which you resided determines who inherits your property and in what proportions.

In Florida, the probate court of the county in which you live oversees the entire probate process, issuing its various orders as necessary. Even if no one challenges your will, your personal representative must “prove up” your will to the court’s satisfaction. In other words, the probate judge must satisfy himself or herself that your will is, in fact, valid.

If all of this sounds complicated, it definitely can be. This is especially true if you have a large probate estate. But what exactly makes up your probate estate?

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Your Probateable Estate in Florida

Your probate estate consists of anything you own when you die that has no other way to pass to one or more of your living heirs. Examples of assets that must be probated include the following:

  • Solely owned bank and investment accounts on which you have placed no payable on death designations
  • Solely owned vehicles on which you have placed no transfer on death designations
  • The real estate which you own solely or as tenants in common with someone else
  • Life insurance policies, medical savings accounts, retirement accounts, etc. whose beneficiaries predeceased you
  • Assets you neglected to put into a trust

Keep in mind that if you own real estate solely or as tenants in common in multiple states, such property may need to go through probate in all these states. For more information on Probate in Florida, visit The Finity Law Firm.

Advantages of Avoiding Probate in Florida

Probate in Florida can take a long time – possibly as long as a year – and also entail considerable expense, such as court fees, personal representative fees, attorney’s fees, and numerous other outlays.

Other reasons you may wish to avoid probate include the following:

  • Your family won’t have access to your probate assets until the probate court allows your probate estate to close.
  • The court probably will require the sale of some of your assets if your probate estate doesn’t have sufficient liquid assets in it to pay all of your debts and taxes.
  • Probate records are public, meaning that the general public can find out how much you owned, how much you owed, and various other financial information that you might well prefer to keep private.

How You Can Avoid Probate?

The good news is that with proper estate planning you can avoid probate in Florida. Your estate plan can be as simple or extensive as your needs dictate, but you begin the process by seeking the advice and counsel of an experienced local attorney who can draft the necessary legal documents for you. These may include such things as the following:

  • Living trust
  • Irrevocable trust
  • Special needs trust for the benefit of your special needs child
  • Charitable trust for the benefit of your alma mater, church, favorite charity, or any other organization you choose to support
  • Health care power of attorney
  • Living will

A well-thought-out estate plan can not only help you avoid probate, thereby minimizing administrative costs and maximizing your loved ones’ inheritances, but can also help you minimize estate taxes when you die. Perhaps most importantly, however, your estate plan can give you the peace of mind that comes with knowing that you have provided for yourself and your loved ones to the best of your abilities.

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What is Probate and Why Do You Probably Want to Avoid It?