Why a Will Won’t Help You Avoid Probate

When you die, the estate you leave behind must go through the probate process unless you’ve taken actions that remove everything from your estate in some way. 

During probate, the court supervises everything while your personal representative notifies creditors, pays bills, files taxes, and distributes remaining assets to your loved ones.

Many people have heard that if they have a will, their family won’t have to deal with the expense and delays of probate. Unfortunately, this is not at all true. A will makes probate more direct and easier in many ways, but it does not help avoid probate. You need to take other measures if you want to allow your family to bypass probate.

How Probate Works

Florida laws require estates to go through probate to protect creditors and those who are supposed to inherit from the estate. The probate rules first require the court to appoint an official representative, sometimes called an administrator or personal representative.

That person then must inventory the estate, publish notice to potential creditors, get appraisals and liquidate assets if necessary, pay bills in order of legal priority, file tax returns, take care of any outstanding business, distribute assets to heirs or beneficiaries, and file a final accounting with the court. It’s a lot of work, and if the personal representative makes a mistake, they could be held liable. For that reason, most people hire an attorney to handle probate, unless an estate is very small.

What a Will Does

In a will, you describe the ways you want your property distributed after your death. You can also name the person you want to handle matters as your personal representative, and you can name guardians for your minor children. These actions make it easier to determine what should happen during probate, but they do nothing to avoid probate.

The process of probate usually begins by having the will presented in probate court so a judge can rule on the validity of the document and approve the naming of the personal representative. Filing the final accounting closes the probate process.

Steps That Can Enable You to Avoid Probate

The way to avoid probate is to remove all assets from your potential estate. Estate planning attorneys usually develop plans that use a combination of strategies including:

  • Creating a revocable living trust and transferring real estate and other property into the trust
  • Adding joint owners to certain property so that property can pass directly through a right of survivorship
  • Naming beneficiaries and alternate beneficiaries to receive property on your passing
  • Gifting strategies
  • Adding payable on death clauses to accounts

Your attorney would work with you to develop a plan that complies with legal requirements and conserves assets while enabling the property to pass to loved ones with the fewest delays and added expenses.

Talk to an Estate Planning Attorney About Probate, Wills, and Other Critical Planning Tools

Even if you use strategies to avoid probate, you still need at least a simple will to take care of any assets that get left out or overlooked. At Amy L. Phillips, PLLC, we help clients with the right documents to protect their future and reduce the burden on their loved ones. 

We would be happy to review your existing documents to see if it’s time for an update or to develop a new plan to avoid probate or meet other objectives. Call us now to learn how we can assist.