Are you worried about what will happen to your assets after you pass away? Estate planning documents like wills and trusts are essential for ensuring that your assets are distributed according to your wishes.
However, the hassle of transferring and distributing assets can be complicated and may require probate administration. Even if you have a valid will, there are procedures and people involved for asset distribution, and that can be quite burdensome to handle alone.
That’s where Farshchian Law comes in. Our Florida probate attorneys are here to help you navigate the complexities of the probate process.
Introduction to Probate Law in Florida
Probate is a legal process that identifies, gathers, and distributes a person’s assets to their heirs while resolving any outstanding debts. Depending on how an asset is titled, probate is often required for those who pass away without a will (as per Florida’s laws of intestate succession).
However, even those individuals who leave a valid may need to have their estate go through the probate process to transfer ownership of certain assets to their beneficiaries.
Understanding the Probate Process
When someone passes away, their personal representative (or executor) plays a vital role in probate administration. In Florida, this person is typically appointed by the court or chosen by the deceased. It’s worth noting that the personal representative must be a Florida resident, a close relative, or one of a few other designated entities. These can include a trust company or a bank with fiduciary powers in Florida.
The personal representative’s responsibilities will vary depending on the type of probate administration that applies to the estate. There are two types under Florida law, based on factors like the value, location of the assets, and the time of death.
If you’re looking for a quicker and less expensive way to go through the probate process, a summary administration is typically the best option. An estate qualifies for summary administration if the person passed away more than two years ago or if the value of their estate is below $75,000. A person’s primary residence (also known as homestead property) is exempt from this $75,000 test so a homestead may be worth millions and may still be able to be distributed to the heirs of the estate through summary administration.
On the other hand, if an estate is worth more than $75,000 or the deceased passed away within the last two years, then a formal probate administration is necessary. In a formal administration, the court will appoint a personal representative to handle all of the details, like paying off debts, dealing with tax returns, and distributing assets to beneficiaries. Formal administration is usually reserved for estates with a lot of assets, multiple beneficiaries, or legal disputes.
Florida Probate Timeline
After understanding the type of probate that applies to your case, the next step is to go over a general timeline for things that need to be accomplished.
A summary administration may be able to be completed in as little as one month but typically takes at least two months. A summary administration is generally shorter because a personal representative does not need to be appointed and there are typically less assets to distribute.
The formal probate administration process in Florida can take at least six to nine months. The first step is to file a petition for probate with the court, followed by appointing a personal representative who will manage the estate. This person will gather assets, pay debts, and distribute what remains to the beneficiaries. Creditors have three months to file a claim against the estate, and disputes can definitely delay the process. An experienced Florida estate lawyer can help you navigate this process more efficiently.
Can Probate be Avoided or Minimized?
By now, you might be wondering if everything you’ve read is an absolute necessity. Fortunately, it’s not!
There are estate planning methods that can successfully avoid the probate process, but to steer clear of the hassle, it’s crucial to be thoughtful and purposeful when devising an estate plan. Here are some ways to do this:
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.
Joint Tenancy With Rights Of Survivorship
This is a way to co-own property where the surviving owner automatically becomes the sole owner without the need for probate. It applies to both real and personal property, and more than two owners can be involved.
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 also an ideal form of ownership to protect marital assets from the creditor claims of one spouse.
Adding adult children as joint owners is also common for automatic transfer after death. A deed transfer is necessary here, and a licensed Florida real estate attorney should be consulted to ensure that all legal formalities are followed.
Lady Bird Deeds
With a Lady Bird Deed (also called an Enhanced Life Estate Deed), you can transfer your property to your beneficiary upon your death while keeping control of it during your lifetime.
It means your beneficiary automatically inherits the property without any legal procedures, but while you are still living, you can mortgage, lease, or sell your property without their consent. Creating a Lady Bird Deed requires legal knowledge and must be accomplished via a deed transfer.
Living trusts offer privacy since, unlike wills, they are not required to be filed with the court. They allow you transfer your assets, such as real estate, company shares, vehicles, intellectual property, and financial accounts, to your beneficiaries.
Common Probate Mistakes to Avoid
Unfortunately, many people make common mistakes that can lead to even more headaches and expenses for you and your loved ones.
A crucial but preventable mistake is not titling assets correctly. Another mistake is not updating beneficiary designations regularly. This can create inconsistencies in your estate plan documents and cause conflicts. Make sure that all your documents and assets are titled correctly and up to date.
We’re here for you
Although probate administration is a necessary step in the distribution of assets after the death of a loved one, it can be particularly daunting. In order to understand and effectively navigate the estate administration process, you can benefit from the counsel of an experienced Florida probate law firm.
If you’re looking for a way to spare your loved ones the stress of court procedures, look no further than Farshchian Law, P.A. With our expert assistance, we can help you develop a solid strategy that will ease the burden on your family even after you’ve passed. Let us help you take the first step towards peace of mind.