If I Have a Last Will and Testament, Does that Mean I Can Avoid Probate?

Did you know that studies continue to share that the majority of Americans today do not have any estate planning? This means they have not created the lifetime documents, as well as the estate planning tools, that can ensure they are protected against uncertainty in their future. All too often in our office, we meet with the remaining family members in a situation where no advance planning was completed and those left behind must deal with the emotional, time-consuming, and costly aftermath.

Even more concerning, however, is the confusion that many people share surrounding estate planning. There is quite a bit of misinformation out there. For example, just a couple of the non-truths we often hear are:

— I created a power of attorney, it should work no matter what.

– I married my spouse, he or she will have all the authority needed to act in a crisis.

– Everyone in my family gets along, there is no reason to pre-plan because there will never be any issues.

– I have a last will and testament, so obviously I will be able to avoid probate.

It is the last one that often causes the most issues. Having a last will and testament does not mean you will necessarily avoid probate. In fact, it may be just the opposite, having a last will and testament could be the reason why your estate goes to probate in Florida. One of the reasons why is because your last will and testament may only be enforced by the Florida probate court, it is designed to go through the probate process, and, ultimately, does nothing to transfer your assets out of your name prior to your passing. 

The probate process is designed to help those who have a will and those who do not (the latter are called intestate estates) through the process of retitling assets to your intended heirs after your legitimate debts are settled. This intestate process, in many ways, is designed to provide money to your statutory beneficiaries only after all creditors are managed and all of the valid claims are paid. The downside, however, includes the fact that probate is a public process, and is also time-consuming and costly.

One way to avoid probate, should you wish to do so, is to create a trust agreement. A trust agreement, whether irrevocable or revocable, can avoid the probate process. This occurs because your assets are retitled out of your name and into the name of your trust. This is called the funding process. When a trust agreement is properly funded, then your assets can pass through the trust to your intended beneficiaries at the time of your death. Bear in mind, trust agreements are not without their own problems and, if a trust is not properly funded, the assets you sought to protect may have to go through the Florida probate process to be transferred to your heirs.

We know this blog may raise more questions than answers. If you have a question regarding the Florida probate process and why it may be necessary, as well as how to avoid it, we encourage you not to wait to schedule a meeting with our law firm. We look forward to answering your questions and helping you achieve the Florida estate planning that you want for yourself, your family, your business, and, ultimately, your legacy.