How To Avoid Probate In Florida

Sep 1, 2022

Death is never easy for the loved ones left behind, but it becomes even more difficult legally, practically, and financially when the deceased family member’s estate (everything they owned) needs to go through probate. In the state of Florida, if someone passes away without leaving certain legal documents in order or taking other measures to arrange their affairs, their financial assets and personal possessions will typically have to undergo probate. Probate is expensive, complicated, time-consuming, confusing, and overwhelming for grieving families, but the good news is that it doesn’t have to happen to your estate when you die! Knowing how to avoid probate in Florida can protect your assets from being depleted and protect your family from stress. 

What Is Probate, & Why Should You Avoid It?

Probate is a Florida court process that legally transfers a deceased person’s assets to their beneficiaries. 

It involves submitting the will to the court, if there was one, which will govern the process; if not, Florida’s intestate laws will determine who gets what (usually the closest living relatives). A family member (either specified in the will or appointed by the court) will be named as the estate’s executor, or the person in charge of the process. The executor will need to: gather, inventory, and appraise the assets; arrange for the maintenance of the assets until probate is closed; formally notify creditors, the public, and beneficiaries; settle outstanding debts with creditors; file final tax returns and pay outstanding/estate taxes, if applicable; submit various documents to the courts; pay fees; meet deadlines; and close the estate once all other probate tasks have been completed. 

While probate isn’t inherently “bad” – it ensures that random people can’t claim ownership of a deceased person’s possessions – it’s certainly not good for grieving families, and you want to avoid probate in Florida if possible. Families who go through probate in Florida face:

  • Being unable to inherit your possessions (e.g., not being able to sell or renovate your house) until probate is complete 
  • Having to correctly complete and file complex legal paperwork
  • Paying expensive probate fees (and additional fees if deadlines are missed or mistakes are made)
  • Having to communicate with the courts and with creditors
  • Having to hire a probate lawyer and pay their fees 
  • Potentially having to enter into litigation if the will is contested or if creditors make claims
  • Taking anywhere from 6 weeks to 6 months to years or longer to complete the legal proceedings 
  • Having their inheritance depleted by the above-mentioned fees
  • And more.

In short, the hassle of Florida probate court forces your family to pay expensive legal costs, prolongs the distribution of your assets, and creates more stress in addition to the grief of losing a loved one. It’s not something you want your family to have to deal with! 

How Can A Professional Estate Planning Attorney Help You Avoid Probate In Florida?

There’s little your family can do to prevent probate once you have passed away other than to hire a compassionate probate attorney who can make the process as smooth as possible for them. Because you’re not guaranteed tomorrow, the best way to prevent from ever having to occur is to plan ahead today by working with a knowledgeable estate planning attorney. An estate planning attorney has extensive experience with Florida’s estate laws and regulations and can help you take the steps necessary to avoid probate in Florida so that your family won’t have to wait for their inheritance and so that you, and not Florida’s court system, controls what happens to your hard-earned wealth. 

Here are a few things that an estate planning attorney can do to give you peace of mind for the future:

Create an airtight, customized estate plan to ensure your assets can bypass probate
The most strategic way to safeguard your assets is to have an estate planning lawyer draft a comprehensive estate plan, made up of several important legal documents that make your wishes clear for who should manage and inherit your possessions and that will be honored in the event of your death or incapacitation.

A will alone won’t avoid probate in Florida. You will likely also need a living trust, which is a document that creates a fiduciary relationship between you, your assets, and a successor trustee. The assets will be owned in the trust and can be managed by the terms you set (and can alter during your lifetime). Upon your death, the trust will be transferred to your successor trustee, who can distribute the assets according to the terms of the trust without having to undergo probate. If you have a blended family, or a loved one with special needs, you may need additional trusts for maximum protection.

Your estate plan may also include an advance directive (wishes for medical care), a power of attorney (gives someone you trust the right to make decisions about your medical care and finances), and other documents that can protect your assets and your loved ones from whatever the future may hold. 

Register your stocks and bonds in a Transfer-On-Death (TOD) Deed

If you hold brokerage accounts like stocks and bonds, Florida allows you to register them in a transfer-on-death deed. Transfer-on-death deeds designate a beneficiary who will work with your brokerage company to immediately take ownership of the account upon your death, requiring no interference from the probate court.

Add Payable-On-Death designations to your bank accounts

Savings and checking accounts in Florida can transfer to your chosen beneficiary upon death if you designate that beneficiary ahead of time (and you will have full access to these accounts throughout your life, allowing you to add or use the funds until you pass away). Payable-on-death or transfer-on-death accounts avoid probate in Florida, changing ownership upon the death of the joint owner without the need for legal intervention.

Switch to joint ownership of your assets
Florida offers two options for joint ownership; both will avoid probate court and may be good options for leaving real estate, vehicles, bank accounts, or other valuable assets to particular beneficiaries upon your death. If you own your assets in joint tenancy, both you and the other owner share equal rights to the property. Upon your death, they will inherit the full sum without having to navigate probate. Tenancy by the entirety is similar to joint tenancy but specifically designed for married couples (the assets would transfer to the surviving spouse).

Gift assets, if appropriate

Another, roundabout way to avoid probate in Florida and guarantee the proper beneficiary receives the personal possessions you wish to leave them is to give your assets to them before you pass away. Since you grant them ownership before your death, personal asset gifts won’t fall under the purview of the Florida probate court. However, this method only makes sense for those who have been diagnosed with terminal illnesses or the elderly, as others don’t have a timeframe for their passing and will need to keep their assets until they pass, and it also won’t work for all types of assets. 

Will DIY Estate Planning Protect Your Family From Probate Court?

There are fees associated with probate, but there are also fees associated with hiring an estate planning attorney. Some people attempt to save money by trying to create an estate plan themselves, through downloadable “DIY” templates or estate plan versions they find online, but these documents don’t reflect Florida’s specific or most recent estate laws, and they also don’t reflect your unique life circumstances. Documents that aren’t compliant, aren’t up-to-date, or that have mistakes can create even more confusion than if you didn’t have them at all, and they likely won’t prevent your family from having to face probate. 

Working with a professional Florida estate planning lawyer is the best way to do estate planning and avoid probate in Florida. There’s a reason that attorneys study for years, are required to pass rigorous testing, and charge fees to do estate planning; it’s not easy, and their legal guidance can guarantee an effective planning strategy that will work when your family needs it most. 

Call Osenton Law, P.A., To Schedule A Free Consultation If you don’t have your affairs in order yet and aren’t sure if your estate will need to go through probate when you pass away, call Osenton Law, P.A.. Our lead estate planning and probate attorney, O. Reginald “Reggie” Osenton, has been helping people avoid probate in Florida for over 33 years. He can answer your questions, explain your options and the most up-to-date Florida estate laws, give you reliable legal guidance during the planning process, change your estate plan as your life changes, provide trustworthy counsel during your lifetime and a trustworthy point of contact for your grieving family when you pass, and more. You can rely on him to help you preserve your legacy! Osenton Law offers affordable, predictable fee arrangements so there are never any surprises. Call now to schedule a free consultation and learn more about how we can serve you!