Avoiding probate is often among the top priorities of anyone undergoing estate planning, and for a good reason. Probate is known to take too much time, cost too much money, and cause too much stress for loved ones. The Florida probate process can be overwhelming, especially following a traumatic event like the death of someone you love. If you would like for your estate to avoid probate, you have options to accomplish this.
Probate in Florida
Probate is required for certain estates in Florida. For example, assets that are solely owned by the deceased and do not have a payable on death beneficiary named will often need to go through probate. The purpose of probate is to settle the deceased’ estate, which often involves paying creditors, settling tax debt, and dispersing assets to heirs. With proper planning, these matters may be accomplished without the need for your heirs to go through probate.
Ways to Avoid Probate
Because the Florida probate process is often so difficult to navigate, there are significant advantages to avoiding probate altogether. You can do this with careful estate planning.
Trusts are a commonly used estate planning tool. They offer a significant amount of control over how, when, and to whom your assets are transferred. Plus, they allow for assets to be passed to heirs without undergoing the complexities of the Florida probate process. Your property is held in the trust’s name, meaning any assets that are properly transferred to the trust are not subject to probate.
One aspect of a trust that makes them so popular is the level of control they give the settlor (i.e., the creator of the trust) – you can dictate specific terms for the inheritance of assets, including having certain assets remain in trust until your beneficiaries reach a certain age or achieve a certain milestone (e.g., graduate college).
Some financial accounts can be set up as payable on death beneficiary accounts, allowing you to designate one or more beneficiaries or heirs to take ownership of the account after your death. You get to choose who you would like to inherit these accounts, and they can avoid probate. A retirement account, such as a 401(k), is one example of an account that can be set up with a payable on death beneficiary. Life insurance also often avoids probate because a payable on death beneficiary is named.
Joint Tenants with Rights of Survivorship & Tenancies by the Entireties
If you own real or personal property with a co-owner (or several owners) as joint tenant with rights of survivorship, the other individual(s) will automatically become the sole owner upon your death. This form of title ownership avoids the probate process altogether.
Spouses commonly hold title together as tenants by the entireties, and this is an excellent way for many marital assets to be held so Florida probate is avoided. The effect is the same as a joint tenancy with rights of survivorship – if either spouse passes, the surviving spouse becomes the 100% owner of the property without the need for probate. In order to create the tenancy by the entirety, the spouses must have been married when they took title and they have to remain married at the time that the first spouse passed away.
The way to form a joint tenancy with rights of survivorship or tenancy by the entireties for Florida real estate is through a deed transfer. These types of deeds should be prepared by an experienced Florida real estate attorney so that all deed formalities and legalities of Florida law are met.
Enhanced Life Estate Deed
An enhanced life estate deed, also known as a Lady Bird Deed, allows you to retain control and ownership of your property while you are alive and have it pass automatically to your heirs after you pass. The property will pass to your chosen beneficiary without the need to go through probate. This process is sometimes called “transfer on death” because the property is transferred only after the owner dies. An enhanced life estate deed has many benefits (such as being able to retain full control of the property while you are alive), and is an excellent estate planning tool.
How Farshchian Law Can Help
A little extra time and effort now is well worth the hassle and money you can save your loved ones. A knowledgeable estate planning and real estate attorney can help you determine which options are best for you. To schedule a free consultation, call us at (800) 604-1871 or send us an email at Info@JFRealEstateLaw.com. We provide estate planning services throughout the State of Florida.