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Is Probate Necessary? Avoiding the Probate Process

Death and accompanying arrangements are not easy topics for most people to discuss. However, it is important to have a full understanding of estate planning to ensure that you and your loved ones are protected in the event that a family member passes away. Proper estate planning includes understanding the cost of probate, and planning effectively to minimize or avoid them. Avoiding the probate process can ensure that your loved ones receive more of what you have left to them in a timelier fashion because you can avoid the cost and duration of probate with many of your assets.

What is probate?

A person that passes away is referred to as a decedent, while persons to whom the decedent’s estate is passed are called beneficiaries. Probate is the court-supervised process that distributes a decedent’s estate to beneficiaries. If a decedent has planned carefully and has left a valid will, the will itself will not be considered valid unless it goes through the probate process. When there is no valid will, the probate process distributes the decedent’s assets to beneficiaries based on predetermined Florida regulations regarding distribution of such assets.

Additionally, probate is used to take care of any outstanding debts the decedent may have had at the time of death. For instance, the decedent’s estate will be used to pay the cost of the probate process and also to pay creditors under certain guidelines. The Florida State Bar Association has a helpful online pamphlet that may be useful in explaining more detail about the probate process.

How long does probate take?

The length of time that probate may take is dependent upon the circumstances surrounding the decedent and the accompanying estate. For instance, there may be a disputed bill a creditor is requesting payment on. The dispute may even need to be resolved legally, and this can lengthen the amount of time that probate takes. Another example of a process that can extend the probate process would be the necessity to sell personal or real property to satisfy outstanding debts or conditions within a valid will. In such cases, the probate process cannot be completed until all of these loose ends are attended to.

How can I avoid probate?

While Florida law seems to require probate with or without the presence of a valid will, it is possible to take some steps to avoid the potentially lengthy and costly probate process. Some of the most common ways to avoid probate include:

·Designating Beneficiaries for Certain Assets: When you specifically designate a beneficiary, and keep such designations current dependent upon your circumstances, it is possible to keep some assets from having to go through probate in the first place. Assets like bank accounts, retirement accounts, insurance policies, and some other financial accounts do not have to go through probate if they are designated to go to a specific person upon the owner’s death. It is important to keep the designations up to date, and change them if a designee is no longer alive or if you no longer wish for that designee to receive that particular asset.

·Joint Ownership with Right of Survivorship: Real property can be held jointly by two people, and by including a right of survivorship in the ownership of such property you can ensure that such property automatically goes to the person that you share ownership with. Of course, these must also be updated regularly. For instance, if you and your spouse own property with a right of survivorship and your spouse passes away, you will generally own that property without the need for probate but may need to then update your ownership to ensure that the property remains free from probate upon your death.

·Trusts: Trusts, specifically revocable living trusts, are generally free from the probate process. By creating a living trust and designating beneficiaries for such trust, assets that you place into the trust can also escape the probate process.

What steps should I take next?

Florida laws governing estate planning, probate, property, and trusts are very complex. While planning for these things can be unpleasant, an experienced Estate Planning Attorney can help you make sense of these laws and formulate the estate plan that will work best for you. The estate planning process can be much less stressful than it may seem. If you are ready to start planning your estate in an effort to protect your assets and your family’s financial well-being, contact Melinda Budzynski a Florida Family Law and Estate Planning Lawyer at Summerfield Law Office today to see how our services can ensure your loved ones are taken care of.