Hillsborough County

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What is Probate and How to Avoid it?

avoiding probate

What is Probate and How to Avoid it?

Understanding Probate: An In-Depth Look

Probate is the legal process that takes place after someone dies with the aim of validating their Last Will and Testament, if one exists, and overseeing the administration of their estate. This process,  supervised by a court, is essential for transferring the ownership of assets from the deceased to the beneficiaries or heirs. Although often considered daunting, probate serves as a systematic method for ensuring the deceased’s debts are paid and assets are distributed according to either the will or, if there’s no will, the state’s intestacy laws.

In Florida, probate is not required under all circumstances. The necessity of probate depends on the types of assets the deceased owned and how those assets are titled.probate in Florida

  1. Probate Requirements: Probate is typically required if the deceased owned assets solely in their name without a designated beneficiary or joint owner. This includes assets such as solely owned real estate, bank accounts without payable-on-death beneficiaries, and personal property. However, if all assets have designated beneficiaries, are held jointly with rights of survivorship, or are in a living trust, probate may not be necessary​.
  2. Estate Size: The size of the estate can also impact whether probate is required. In Florida, estates valued under $75,000 may qualify for a simplified probate process called summary administration, which is faster and less expensive. Disposition without administration is possible for very small estates where the only assets are exempt from probate or do not exceed the final expenses of the estate​​.
  3. Complexity and Assets: Estates with significant complexities, such as multiple properties and business interests, typically require formal probate. This process can take longer, especially if there are disputes among beneficiaries or creditors’ claims that need resolution​​.

Steps Involved in Probate

  1. Filing the Petition: The process starts when a petition is filed with the probate court to either admit the will to probate and appoint the executor or, if there’s no will, appoint an administrator of the estate.
  2. Notifying Heirs and Creditors: Following the petition, heirs and creditors are typically notified of the probate proceedings. Creditors have a fixed amount of time to file claims against the estate for debts owed to them.
  3. Inventory and Appraisal: The court will expect an inventory of all the deceased’s assets and an appraisal to determine their fair market value.
  4. Paying Debts and Taxes: The executor or administrator must pay off debts, which may involve liquidating assets, and settle any tax obligations from the estate’s funds.
  5. Distribution of Assets: After all debts and taxes are paid, the remaining assets are distributed according to the will, or in the absence of a will, according to state law.
  6. Closing the Estate: Once asset distribution is complete, the executor or administrator will file paperwork with the court to close the estate, marking the end of the probate process.

estate administrationTypes of Probate

  • Formal Probate: This is the most traditional form and involves considerable court intervention. It’s generally reserved for estates with significant complexities, such as disputes among beneficiaries.
  • Informal Probate: This is an expedited process available for straightforward estates with no conflicts among the beneficiaries and clear directives via a will.
  • Summary Administration: Some states, like Florida, offer a streamlined probate process for smaller estates or estates where the deceased has been dead for a certain amount of time.

Why Avoid Probate?

  • Time-Consuming: Probate can last several months to a few years, depending on the complexity of the estate and the efficiency of the court system.
  • Expensive: Between court fees, executor fees, and other administrative costs, probate can eat up a significant chunk of the estate.
  • Lack of Privacy: Probate records are public, meaning the details of the estate and the beneficiaries are accessible to anyone who wants to see them.

The following is a dramatization and is not an actual event: Jane, a widow with two adult children, passes away with a will that clearly outlines her wishes for her estate. Despite the clarity of the will, her children have to go through a formal probate process because of the large size and complexity of the estate, which includes multiple properties and business interests. The probate process takes nearly two years to complete and incurs substantial fees, diminishing the value of the children’s inheritance.

Understanding probate in its entirety allows you to make informed decisions in your estate planning, potentially saving your heirs time and money. With proper planning, including the use of living trusts and beneficiary designations, you can often minimize the impact of probate on your estate.

Quick Bullets for Avoiding or Preventing Probate:

  • Create a Living Trust: Transfers assets to beneficiaries outside of probate.
  • Joint Ownership: Assets with right of survivorship bypass probate.
  • Designated Beneficiaries: On accounts like life insurance and retirement funds.
  • Payable-on-Death Accounts: For bank accounts and certificates of deposit.
  • Gifts: Give away assets while you’re still alive, within the limits of the law to avoid taxation.
  • Small Estate Procedures: Utilize state provisions for small estates to skip or expedite probate.

By understanding the basics of probate and how to avoid it, you can save your heirs time, money, and the public scrutiny that comes with a court-supervised process.


1. What are the first steps in estate planning for veterans?

Consulting with an estate planning attorney and gathering essential documents like your DD214 and VA benefit statements are crucial first steps.

2. How can VA benefits be included in an estate plan?

VA benefits, including pensions and disability compensation, can be integrated into your estate plan to ensure they continue to support your family.

3. What should veterans consider for long-term care planning?

Veterans should explore VA-sponsored long-term care options and include them in their estate plan to cover potential future healthcare needs.

4. Why are wills and trusts important for veterans?

Wills and trusts help manage and distribute a veteran’s assets according to their wishes, avoiding probate and providing tax benefits.

5. How often should veterans update their estate plans?

Veterans should review and update their estate plans regularly, especially after significant changes in family, benefits, or financial status.

Take Action Now

Are you ready to secure your financial future and protect your loved ones? Contact Summerfield Law today at our Office at (813) 850-0025.

Our knowledgeable estate planning attorneys specialize in helping veterans like you create comprehensive plans that honor your service and ensure your family’s well-being. Don’t wait—take control of your estate planning now and gain peace of mind for the future.

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