Are you worried about the excessive costs involved in probate court proceedings? Let us help you carry the burden.
Here at Farshchian Law, P.A., we understand how overwhelming the legal requirements and procedures can be for grieving loved ones. That’s why we strongly recommend considering options to avoid probate and create a personalized estate plan.
Let us help you plan for the future and ensure that your wishes and your family’s needs are met without the avoidable hassle of probate.
Introduction to Florida laws on wills
A will is a legal document outlining how a person’s assets and property should be distributed after death. It’s an important estate planning tool because it allows people to control how their assets are distributed after death.
What is a will, and why is it important?
There are many reasons why having a will is so important. Firstly, it gives you the power to dictate how your assets will be distributed once you’re gone. This means you can rest easy knowing your loved ones will be cared for just as you intended.
Secondly, having a will in place can prevent potential conflicts or disputes between your family members over who gets what. And lastly, Secondly, having a will in place can prevent potential conflicts or disputes between your family members over who gets what. And lastly, having a will allows you to appoint a guardian for any minor children, or disinherit any family members who you don’t want to leave any assets to.
Having a will in place is an important part of planning for the future and ensuring your wishes are fulfilled. Without it, the State of Florida will determine how your assets are distributed through intestate succession.
What makes a will valid in Florida?
To be valid in Florida, a will must meet certain requirements. Generally:
- The maker of the will (called the testator) must be at least 18 years old.
- They must be of sound mind at the time they sign the will.
- The will must be written.
- It must be signed before two witnesses who must sign in each other’s presence and in the presence of the testator.
- The will must follow exactly the formalities required by Florida law for its execution.
- To be effective, it must be proven valid and admitted into probate by the probate court.
Common mistakes to avoid when creating a will in Florida
There are a few common mistakes that people often make when creating their wills – avoiding them is crucial if you want your wishes to be honored after you pass away.
One of these oversights is failing to update your will regularly. Life is unpredictable, and you may acquire new assets or beneficiaries that should be included in your will. If you don’t update it regularly, your wishes won’t be carried out as you intended.
Another one is forgetting to name a guardian for your minor children. This is important, as the court may appoint someone you wouldn’t have chosen if you didn’t name a guardian in your will.
And perhaps, a rather obvious mistake is not seeking legal advice. Creating a DIY-will might seem like a good idea, but it’s always best to consult with a legal professional to ensure that your will is legally binding and valid.
Types of property ownership in Florida
Of course, when disposing of properties through a will, you must be aware of the different consequences of property ownership in Florida.
There are several ownership types that you should be aware of. The most common types of property ownership in Florida are sole ownership, tenancy in common, joint tenancy with rights of survivorship, life estate deeds (including Lady Bird Deeds), trusts, and tenancy by the entirety. Each one is discussed in greater detail below.
Sole ownership is the simplest type of property ownership, where an individual owns the property outright.
Tenancy in common is when two or more people own a property together, but each person owns a separate share of the property.
Joint tenancy with rights of survivorship is similar to a tenancy in common, but when one owner passes away, their share of the property automatically transfers to the remaining owner(s). Take note that this is a common type of property ownership that you could use to avoid probate.
And finally, tenancy by the entirety is a type of joint ownership that is only available to married couples, where both spouses own the property together.
Life estate deeds allow an individual to convey an interest in their property to someone else while still retaining rights (including ownership and possession) over that property for as long as they live. An Enhanced Life Estate Deed (a/k/a “Lady Bird Deed) is a popular form of property ownership in Florida because it allows the life estate holder to maintain full control to lease, sell, or mortgage the property while they are still living without the need for the consent of the future interest holder(s).
Trusts (including revocable living trusts) are great estate planning tools because they allow the settlor (i.e., the creator of the trust) to maintain full control of their assets while they are still living, and they also offer great flexibility as to how the settlor’s assets will be held or distributed upon their death. An additional benefit is that if a property is correctly transferred into a trust, probate is avoided.
These different types of ownership come with different rights and responsibilities, so it’s important to understand them before making any decisions about purchasing or transferring property.
The role of property titling in determining probate
Property titling is a critical factor when it comes to probate in Florida because some assets can avoid probate altogether if they are titled in a specific manner.
Assets such as joint tenancy with rights of survivorship transfer automatically to the surviving owner upon the death of the other owner. Similarly, assets titled as “payable on death” or “transfer on death” pass directly to the named beneficiary without going through probate.
It’s important to note that not all assets can be titled in this way. For example, real estate in Florida cannot be titled with a transfer on death deed. However, Lady Bird Deeds, which function similarly, can be used to transfer real estate outside of probate.
The probate process in Florida
Probate refers to the court process of sorting out the assets and liabilities of someone who died. This involves identifying, collecting, and distributing the individual’s assets among their heirs while also settling any debts.
Even if someone has a valid will, their estate may still need to go through probate to ensure that their assets are passed on to their intended beneficiaries. In Florida, probate is often required for individuals who pass away without a will.
Estate planning tools to avoid probate
While a will is an important estate planning tool, it is not enough in and of itself to avoid probate in Florida. There are several other estate planning tools that can be used to avoid probate, such as:
These are accounts from financial institutions where you can designate a beneficiary who will receive the assets in the account after you pass away. This is a great way to avoid probate court, as the beneficiary has already been chosen and listed by you.
However, there are a few things to keep in mind. Beneficiary accounts aren’t usually protected from creditors, and the money in these accounts cannot be used to cover funeral or trust administration costs.
If you have a retirement account like an IRA or 401(k), you can also choose a “payable on death” beneficiary. For bank accounts, having a joint account holder can help you avoid probate.
Joint Tenancy with Rights of Survivorship
This is a way of co-owning property where the surviving owner automatically becomes the sole owner upon the other owner’s death, without the need for probate. This is applicable for both real and personal property, and can involve more than two owners. When spouses hold joint ownership, it is called tenancy by the entirety, which allows the surviving spouse to become the 100% owner of the property without the need for probate. This is a useful way for marital assets to avoid probate in Florida and can also protect assets from creditor claims.
Joint tenancy with rights of survivorship is a common way to transfer property to a beneficiary without going through probate. People often add their adult children as joint owners so the property can automatically transfer to them when they pass away, avoiding probate. To form this type of tenancy, a deed transfer is needed, which should be done by a licensed Florida real estate attorney to ensure all legal formalities are followed, and the correct language is used.
Lady Bird Deeds (also known as Enhanced Life Estate Deeds)
Lady Bird Deeds are a way to transfer your real estate property to your beneficiary after you pass away while still maintaining control of it during your lifetime. This is only available in a few states, and Florida happens to be one of them.
What’s worthwhile to consider about this option is that your beneficiary automatically inherits the property, so no need for lengthy legal processes aside from the added aspect of complete control while you’re still alive. You can mortgage, lease, or sell it without needing the future interest holders’ consent.
However, it’s important to note that creating a Lady Bird Deed requires a deed transfer and some legal know-how. It’s best to work with a seasoned Florida real estate attorney to ensure everything is done right.
If you’re looking to avoid probate and keep your estate private, a living trust might be the way to go. Unlike probate, living trusts do not become public record as they are not filed with the court.
This option also allows you to pass assets on to your beneficiaries upon your death. Assets such as real estate, vehicles, stocks, intellectual property, and financial accounts can be included here.
Why You Need an Experienced Florida Probate Attorney
If you want to ensure that your estate is distributed according to your wishes and avoid probate, it is important to hire a Florida probate law firm who is knowledgeable about estate planning.
An experienced Florida probate attorney can help you create a deed, will or trust that meets all the legal requirements and can provide advice on other estate planning tools that may be appropriate for you.
At Farshchian Law, P.A., we can assist you in developing a strategy so that your heirs can avoid the hassle of the probate court process. Our ultimate goal is to help ease the burden and unnecessary stress for your loved ones, even after you’re gone.