Many of our clients have significant questions when it comes to the probate process. From whether they can avoid it and why it matters to how to find the right attorney who will ensure beneficiaries are protected. We spend much of our time answering these critical questions about the probate process in Florida.
You have probably heard the statement: there are no stupid questions. This applies to this conversation surrounding probate. Probate can be confusing. We will clear this up right here. Probate is the process of ensuring that a deceased person’s assets, or estate, are passed on to his or her desired beneficiaries or heirs at law after valid creditor claims have been paid. Without the probate process in Florida, there is not always a clear procedure for making sure your beneficiaries/heirs inherit from you.
This is not to say that probate must occur when a Florida resident dies. Instead, Florida probate may occur, either by choice or by default, at the death of a Florida resident. In the former instance, you may choose to only have a last will and testament, meaning assets owned in an individual name (assuming no joint owners or named beneficiaries) will pass through probate upon death. In the latter instance, you may be one of the more than 50% of Americans who do not have an estate plan and end up in the probate process by default.
Can you avoid probate? You can. Probate only applies to assets held solely in the deceased’s name at death. You can avoid it. Further, when you work with an experienced estate planning attorney, he or she can guide you through the process of creating a trust agreement. With it, you will avoid probate and achieve the goals you want for your legacy as well.
We find there are so many misconceptions about the Florida probate process. We will clear a few of them up for you together with providing three tips you may need now, or in the future.
1. There is no privacy in Florida probate. When you pass away, your last will and testament must be filed with the probate court for safekeeping within ten days from the date of your death. There is no privacy at that time. Under these laws almost all documents are discoverable. This means that anyone can review who you left your estate to at the time of your passing.
2. Probate is time consuming. Probate is not a short process. There are statutory timelines that must be filed. For example, there is a three month creditor period during which all creditors have the opportunity to file their claims to be paid. This is just one of the ways the required timeframes can add up to lengthen the time between your passing and the distribution of your estate to your beneficiaries.
3. The open process leaves you open to challenges. When your last will and testament is public, an interested party may challenge it. If privacy or challenges are a concern for you, consider discussing this with your estate planning attorney. He or she will be able to make alternative estate planning suggestions for you. This can include, but not be limited to, creating a trust agreement. A trust agreement can allow you to not only avoid the probate process entirely, but the lack of privacy associated with it.
With all of that being said, there is one important advantage to the probate process in Florida, namely the ability to close out potential creditor claims in a 3 month window as opposed to 2 years. This is important because without probate, all assets owned in a trust that was revocable up until the moment of the grantor’s death are considered available to satisfy any creditor claims. So, for example, if the decedent owned all assets in a revocable trust, and no probate occurs following the decedent’s death, then potential creditors have up to 2 years to file a creditor claim. This elongated claim period leaves the successor trustee open to potential liability if distributions to beneficiaries are made within the 2 year window.
We know this article may raise more questions than it answers. When it comes to the Florida probate process we encourage you to ask your questions sooner rather than later. Do not wait to contact our office to learn how we may be able to help you and your loved ones both now, and in the future.