Avoiding Probate

Simply put, probate is the process where a judge signs off on the transfer of a decedent’s assets to the beneficiaries.  Therefore, when someone passes away leaving behind an asset which is titled, (such as an account at any financial institution, real property, insurance, etc.), and there is no joint owner or beneficiary, that asset can only be transferred, or given to the beneficiary, in probate.  Although there are different types of probate administration, [disposition of personal property, summary administration, formal administration], probate is still required. People often think probate can be avoided if the assets are below a certain amount. Although it is true that a summary probate administration may be appropriate, the probate is still necessary.  The size of the asset does not determine whether Florida probate is necessary, it is rather the way the asset is titled.

Additionally, having a last will and testament does not avoid probate.  A last will and testament, if properly executed, will be admitted to court by the judge.   The last will and testament states who is to be appointed personal representative and lists the beneficiaries.  It acts as a guide to the judge for the probate process, however, it does not eliminate the need for a probate. Without a will, the judge looks to the Florida law on intestacy, which lists one’s beneficiaries based on a family hierarchy.

The reason people seek to avoid probate is because it can be a lengthy and expensive process.  The court’s filing fee to open an estate is currently $400, plus there are additional costs through the administration, and attorney’s fees.  There are several steps throughout a formal probate administration. Once appointed personal representative, publication must be made to notify creditors of the existence of the estate.  There is a three-month creditor claims period; pending creditor claims, the personal representative is typically advised against making any distribution of assets. The personal representative must file an inventory of estate assets and prepare an accounting before closing the estate.  to properly administer the estate there are several other procedural steps and matters that must be taken care of.

After a loved one has passed away, inventorying the home, obtaining an EIN, working with an attorney, and signing countless documents, are not the things most people wish to do.  Probate can be either minimized or avoided if the decedent’s affairs are in order, giving family members and loved ones the opportunity to grieve their loss without worrying about court involvement.

Want to learn more about avoiding Florida probate issues, schedule a consultation with Elaine McGinnis, P.A.. She is an experienced Tampa, FL estate attorney who can help your family and loved ones.