Alternatives to Probate

Did you know that the probate process can take up to two years and consume upwards of 3 to 5% of your estate in legal fees and court costs? That’s a substantial amount of time and money that could have gone to your surviving spouse, children, or other family members and loved ones. If you’re looking to bypass the lengthy and costly probate process, you’ve come to the right place.

This overview explores various alternatives to Florida’s formal probate process, called Formal Administration. Alternatives include two simpler probate processes for smaller estates: Summary Administration and Disposition of Personal Property Without Administration. Additionally, Living Trusts (Living Revocable Trusts) can permit one’s assets to pass to beneficiaries without the need for any probate process, or, can permit the majority to pass without probate and the remainder to pass through the simpler smaller estate processes. Learn how to make informed decisions that can save you both time and money.

Get Legal Help Now! William C. Roof can help you make sense of your options. With a history of resolving complex legal matters he brings diligence to your estate planning needs with an eye toward anticipating potential problems and attempting to resolve them before they arise.

What is Probate?

Probate is a court-supervised proceeding that primarily serves to carry out the wishes expressed in a deceased person’s valid will and through an appointed personal representative (executor) who manages distribution of the estate assets after debts and other liabilities are resolved. In other words, the probate court’s goal is to make sure that the deceased person’s estate is properly passed on to their loved ones through the personal representative via probate administration.

This process also involves locating all assets, assessing their total value, paying off any debts and taxes, and finally distributing the remaining assets to heirs or beneficiaries according to his or her will (or according to Florida intestacy law if there is no will).

shaking hands

Overview of Probate Process

  1. Initiation: If there is a will naming a personal representative (executor), he or she initiates the probate by filing a petition at the probate court (typically through a probate attorney). If there isn’t a will, then the petition is typically filed by a surviving spouse, child, other family member, or even a creditor. Generally, the court then authorizes the personal representative to handle the estate matters.
  2. Asset Identification and Valuation: All assets owned by the deceased are identified, inventoried, and appraised for their current value as assets of the estate of the deceased.
  3. Debt Payment: The personal representative (executor) uses estate assets pays off any debts and taxes owed by the deceased.

  1. Asset Distribution: Remaining estate assets are distributed to the heirs or beneficiaries according to the will (or according to Florida intestacy law if there is no will).
  2. Finalization: The personal representative (executor) reports to the court about how the assets were managed and distributed, and the probate process is concluded upon court approval.

What are the Common Issues with Probate?

Here are some common issues that might come up during this process:

  • Conflict Among Family Members: Disputes often arise among family members regarding the distribution of assets or the validity of the will.
  • Time: The duration of the probate process can vary widely, ranging from a few months to several years, depending on the complexity of the estate, Florida laws, and family dynamics. Smaller estates with fewer assets and debts tend to go through probate quicker. Estates held in a living trust may be able (and often are able) to skip the probate process entirely.
  • Cost: Probate can be expensive, with costs including court fees, attorney fees, and other professional fees. The fees can take up a significant portion of the estate’s value.

How to Avoid Probate: Common Alternatives to Probate

Here are a few tools you can use to avoid the cost and complexity of probate in Florida:

1. Living Trusts

A living trust is a legal document that allows an individual to transfer their assets into a trust during their lifetime. The individual retains control over these assets while he or she is alive, and upon his or her passing, the assets are transferred to designated trust beneficiaries. Since the assets were not owned by the decedent, the assets do not enter the decedent’s estate for probate purposes.​

2. Payable-On-Death (POD)

Payable-on-death (POD) are financial accounts, including bank accounts, that allow a client to designate a beneficiary who will receive the funds in the account upon the account holder’s (client’s) death without going through probate. These beneficiary designations can simplify the passage of financial assets when one passes.

3. Lady Bird Deed

A Lady Bird Deed, or “Enhanced Life Estate Deed,” is a method whereby a client can designate a beneficiary to take his or her real estate after the client passes away. This allows the client’s real estate to skip probate by transferring automatically to the beneficiary.

Factors and Legal Considerations When Choosing an Alternative to Probate

While these options can save you time and money, choosing the right one for your situation requires careful thought. Some factors to consider include:

1. The Size and Complexity of the Estate:

  • The larger and more complex the estate, the more benefit a living trust can provide to a decedent’s beneficiaries by allowing them to circumvent or significantly reduce the probate process.
  • Oftentimes the larger and more complex the estate, the more likely a client prefers to institute control over trust assets for years after his or her passing, which likely requires a trust and administration by a trustee.
  • The size of the estate might also determine the type of probate process applicable. For instance, an estate worth over $75,000 will likely not qualify for a quicker summary administration.

2. State Laws and Requirements:

  • Florida law governs most aspects of estate planning and probate, including the identification of beneficiaries for bank and retirement accounts. The federal tax law might also have a role, especially concerning federal gift and estate taxes​​.
  • The methods to avoid probate vary among states. For instance, some states allow married couples to avoid probate for all their property with a single agreement, while others might require a combination of pay-on-death designations, a transfer-on-death deed for real estate, and joint accounts​​.

3. Estate Tax Implications:

  • Different probate alternatives have varying estate tax implications. Assets in a living trust, for example, remain part of your taxable estate, while assets in an irrevocable trust or even life insurance proceeds may not be subject to estate tax.
  • Large gifts given during your lifetime can reduce the size of your estate, potentially lowering estate tax liability, but they might trigger gift taxes. It’s advisable to consult with a tax professional or attorney to understand these implications fully.

4. Possible Effects on Medicaid Eligibility:

  • Some probate alternatives, especially gifting away assets, could affect future eligibility for Medicaid.
  • Medicaid rules have a multiple-year “look-back” period during which any asset transfers could potentially cause one to be penalized from Medicaid eligibility.

5. Impact on Family Dynamics and Potential for Disputes:

  • Your choices in selecting a probate alternative might affect family dynamics.
  • Some choices can cause disputes or hard feelings among family members. A clear, well-thought-out plan can help minimize potential family conflict after your death.

Why to Consult an Attorney for Alternatives to Probate?

Consulting an attorney for alternatives to probate can be advantageous for several reasons:

  • Legal Guidance: An attorney can provide valuable insights into legal considerations when choosing an alternative to probate, ensuring compliance with state laws.
  • Estate Administration: Simplified estate administration procedures may be available to avoid full probate. An attorney can guide you through these alternatives, making the process less daunting.

  • Asset Transfer: Attorneys assist in transferring real estate and other assets to beneficiaries, resolving tax issues, and preparing/filing necessary legal documents.
  • Understanding Options: Legal professionals can help understand all available options to avoid probate court, making it a beneficial choice for you and your family.

Frequently Asked Questions about Alternatives to Probate

  • Is it legal to avoid probate?
    Yes, it’s legal to avoid probate using the options provided by Florida law.
  • Is probate necessary if there is a will?
    The necessity of probate isn’t determined by the presence of a will. Probate can help ensure that a will is followed properly, but even with a will, an estate might avoid formal probate administration depending on other factors like the type and value of assets or whether there is a living trust.
  • Is probate the only way to settle an estate?
    Probate is not the only method to settle an estate, although it might be the only available option depending on what actions the decedent took to prepare for the transfer of assets.

Take Control of Your Estate Planning with Alternatives to Probate

Legal advice can make all the difference in estate planning. William C. Roof can guide you through your best options. Protect your assets, save time, and make informed decisions with the help of a professional.

The contents of this article are not comprehensive, they provide only a general overview of the subject matter discussed. This article does not establish a client-attorney relationship with the reader, and no legal decisions should be made based on the article’s contents. Because every legal matter arises under unique facts specific to the client, no legal decision should be made without consulting a licensed attorney.

contact us

We’re here to answer all of your questions. Feel free to give us a call, or fill out the form to the right and we’ll get in touch with you soon.

2600 E. Robinson Street, Orlando, FL 32803