Ask most people here in Florida about how they will pass along their property to their kids or spouse or favorite charity, and odds are high that they’ll say they are doing this with their Last Will and Testament. After all, writing your will is a traditional and historic way of leaving your valuables — your land, your home, your jewelry and artwork — to your loved ones.
Broward County Courthouse in Fort Lauderdale, FL; Photo by Georgia Guercio; 2010-11-21
Anyone who uses a Will to leave property to their heirs and beneficiaries also leaves them with having their estate administrated in accordance with the Florida probate statutes and probate rules. Under Florida probate law, the probate court oversees the process of how that will’s instructions are followed.
Everything from confirming who the beneficiaries are under the will, to who acts as the personal representative of the estate, to paying off creditors, paying taxes, transferring title to real estate, and more, must be routed according to the probate laws.
Due to the time it takes to administrate an estate, as well as other misconceptions about the probate process, Florida probate lawyers are often asked by their clients for ways to avoid the Florida probate process, if possible.
5 Examples of How to Avoid Florida Probate
1. Don’t own any property.
If you don’t have any property to transfer, then there is no need for a Florida Probate Court to be involved, as a general rule. This is where gifting comes into play as well as jointly owned property with rights of survivorship.
2. Have a Trust.
If you create a trust (e.g., a revocable living trust) your trustee has the job of following the trust’s instructions on the property you’ve transferred to the trust. When transfer all of your assets to your trust, then you may not need a probate administration after your passing. However, your trustee may need to file a Notice of Trust with the Probate Court.
3. Checking Accounts with Others
If you keep your money in a checking account with a child or spouse that is “joint tenancy with right of survivorship” (JTWROS), then the person named on the account with you becomes sole owner of that account when you pass, there’s no need for this to go through probate. (there are risks in setting up your accounts this way, including tax issues, creditor issues and possible divorce issues related to the co-owner, among other issues.)
4. Own Your Home as a Life Estate
If you transfer your home or other real estate to a beneficiary, but keep a “life estate” for yourself, then the land automatically transfers in full upon your death because the “life estate” ends by its own terms. No need for a probate court to be involved here. (Again, there are risks in using this strategy, including possible restrictions on lifetime transfers and possible divorce issues related to the co-owner, among other issues.)
5. Contracts that Pay Upon Your Death
Life insurance policies, IRAs, annuities, and other contracts name beneficiaries that will receive ownership of these assets upon your passing. It is controlled by contract law, and the Florida Probate Code isn’t applicable to these agreements.
Warning Before Using These Probate Alternatives
As always, there are things to consider when Florida law comes into play. The above non-probate avenues are tools to be used to avoid the cost in time and money to your beneficiaries of a Florida probate administration. However, if you are not careful, then you may end up creating a legal mess that gives them a bigger headache than just writing out a simple Last Will and Testament would have caused.
Before deciding to do things like add your child to your checking account or transfer your home to your spouse, it’s important to get the guidance of a Florida probate lawyer. Each person is an individual and each situation is unique. A meeting with an attorney to confirm that your plans are sound and without any legal surprises isn’t that expensive and getting legal advice here is not only a relief to you but a comfort to your loved ones in the future.