Avoiding Probate in Florida

Florida probate has always been a costly, bureaucratic and time-consuming process. With recent cuts in Florida court staff, it has become even more costly. However, with proper legal planning, probate – which can consume 6% or more of the estate- can be avoided.

A Common Myth. First, let’s discuss a common myth. Some persons believe that if you have a Will that you can avoid probate. This is completely wrong. A Will essentially guarantees probate because probate is the procedure for proving up a Will, paying creditors, and making distributions according to the Will. For more information about the probate process, see our Florida Probate Quick Reference Guide.

The entity of choice for avoiding Florida probate is a living revocable trust. The living trust has been the preferred entity in Florida for over 20 years for five reasons:

1. Nothing is stronger than a living trust: With a living trust, you can give your successor trustee 100% legal control and title.
2. The living revocable trust is totally flexible: The key word is “revocable” which means you can change the trust anytime you wish. However there is only one person in the world who can change your trust, you.
3. Avoid Guardianship: In additional to avoiding probate, the trust can also avoid guardianship. Guardianship is the court process a person may be compelled to go through in the event of mental incapacity. Florida guardianships often start at $5,000. Frankly, for many persons, avoiding guardianship is more important than avoiding probate.
4. Control: Most families want to keep legal control in their family and not give such control to a stranger judge. Many people have family members who can step in and follow your instructions upon death. Essentially that is what a trust provides: detailed, legally binding instructions. Unless your family is completely dysfunctional and you require court supervision, there is no need to have a stranger judge appointed to make sure your wishes are fulfilled. It is far better for you to select the person you trust to carry out your instructions without the courts intervention.
5. The rising costs of Florida Probate: Properly funded, the living trust avoids the costs, time, and bureaucracy of probate. It is not a “pink pill” that avoids all costs. Upon death the trust must be administered according to the trustmaker’s wishes. But since trust administration is out of court, the costs and time are usually far less than a typical probate.

Note: For more information, see our popular brochure: Understanding Living Trusts For Florida Residents or the Spanish version: Comprendiendo Fideicomiso en Vida Para Residentes de la Florida.

Assets that are owned by the living trust or name the trust as the primary beneficiary will usually avoid probate. Upon death, the living trust becomes irrevocable and is a separate legal entity.

Prior to death, the trust must be “funded”. This means most assets that would otherwise have to go through a probate process must be titled in the name of the trust, or name the trust as a beneficiary. If you have a living trust, it is important to periodically review the trust funding to make sure that all major assets are owned by the trust, or flow into it.

Note: Some persons believe they can do this type of planning by taking the do it yourself approach using forms found on-line. In rare cases this may work, but in most cases it does not, and ends up costing far more than paying an attorney who concentrates in this field.

It would be a great over simplification to say that the living trust is the only strategy for avoiding Florida probate. In fact, there are many other strategies, such as using a “Lady Bird” deed (also referred to as an enhanced life estate deed), placing title as joint with survivorship or, if married, as tenants by entirety. Banks accounts can use “POD” (Pay on Death), or “ITF” (In Trust For) designations. This is a short list. Most persons need to use multiple strategies, but the core strategy is usually a living revocable trust.

1. The high costs, time and court bureaucracy of Florida Probate can be avoided with a properly designed living revocable trust and appropriate estate planning using an experienced Miami trust attorney.

2. The living trust must be properly funded so that all assets are titled in the name of the trust or flow directly into the trust upon death.

3. If you have a living revocable trust, it is highly recommended that you review the trust funding with your trust attorney.

4. Cost effective estate planning is not simple: consult an experienced Miami trust attorney.

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.