Wills are valuable tools for distributing property and reducing the stress on families after a loved one has passed. But does a will eliminate the need to probate an estate in Florida? The short answer is, no. Having a will can make distribution easier, but on its own, a will cannot keep your estate from going through probate.
Actually, wills play a critical role in the probate process. Florida requires that a deceased person’s will must be filed at the local circuit court within ten days of learning of the death. The court will review the will, see if it meets state requirements, and admit the will into the case to direct the distribution of property.
How Long Does the Probate Process Take in Florida?
Probate, which is the legal process used to identify and distribute a deceased person’s assets, can be completed in just a few months, or could take years, depending on the circumstances involved. The amount and type of assets included in the estate, the decedent’s debts and creditors, and the existence and terms of a will are all factors that can affect the length of time necessary to probate an estate.
In Florida, there are two main types of probate:
- Summary Administration. Summary administration is a type of probate primarily used when the estate’s assets are less than $75,000 and the deceased person has no creditors, or the death occurred over two years prior to probate. Under Florida law, if the decedent left any debts at the time of death, creditors have two years to collect and summary administration is not the best option in those cases. After two years have passed, the decedent’s estate no longer has any obligations, making summary administration the preferred probate process.
- Formal Administration. Formal administration is the typical probate process requiring a personal representative (Florida’s term for executor) who is granted the authority to settle the estate. The process includes inventorying assets, paying debts and taxes, and distributing remaining amounts to beneficiaries.
Ways to Avoid Probate in Florida
In Florida, there are options available to help avoid probate. These include:
Living Trusts. With a revocable living trust, an individual can control and receive the benefits of their property, but the trustee appointed in the trust document technically owns that property. When the grantor who created the trust dies or becomes incapacitated, an alternate trustee can manage assets and distribute them to other beneficiaries according to the terms set up in the trust document.
Joint Ownership. When property such as real estate is held in joint ownership with a “right of survivorship,” the property automatically transfers to the remaining owner after the other owner(s) pass away. Property owners in Florida can hold many types of the property under joint tenancy or tenancy by the entirety to help achieve the goal of avoiding probate. This is an economical and easy way to avoid probate, but it doesn’t offer the control and protections of a living trust, and may create problems later on if the owner needs to apply for Medicaid benefits to pay for nursing home care.
Beneficiary Designations. There are various forms of beneficiary designations that can enable bank accounts, stocks, bonds, life insurance proceeds, and other financial assets to pass without becoming part of an estate subject to probate. These designations are known as payable-on-death or transfer-on-death.
Beneficiary designations can be extremely useful for avoiding probate because they allow direct transfer beneficiaries. These, too, are easy and economical but not as protective as a trust and may create penalties and ineligibility in a future Medicaid or VA benefits application.
Consult an Experienced Estate Planning Attorney
While a will does not eliminate the need for probate, it remains an essential estate planning tool. A qualified estate planning attorney can guide you through the process of creating a valid will and advise you about which probate avoidance strategies are right for your estate. To learn more about the best options for your situation, contact us now