In simple terms, probate is the legal process that occurs after you pass away. This process is used by the court to oversee the distribution of your estate to the rightful heirs.
When you avoid probate, money or property from your estate can go directly to the people named in your will without going through the court first. To have this happen, however, you need a detailed estate plan that makes your wishes known. The expertise of experienced Tallahassee estate planning attorney Ben Patton can help with the estate planning process.
How the Probate Process Works in the Sunshine State
The probate courts typically take care of probate cases. Florida law directs this process, which has several steps:
- Determining if a will is valid
- Ensuring all debts of the estate get paid
- Documenting all of the property that belonged to the person who passed away
- Distributing the assets of the person who passed away according to what their will says and what Florida state laws require
Secure Your Estate: 5 Benefits of Avoiding Probate in Florida
Considering the complexity and cost associated with the probate process, many people prefer to steer clear of it whenever possible. There are five significant benefits of avoiding probate.
1. Saving Time
Probate includes court proceedings, estate reports, and the potential need for heirs to reach mutual agreements. Since the courts control probate, it usually proceeds very slowly. The duration of the probate process can vary, hinging on factors such as the number of beneficiaries, the complexity of the estate, and the presence of conflicts among the heirs.
Probate can take a few months to several years to wrap up. In the meantime, the estate's assets are in a "probate limbo"—meaning that the beneficiaries cannot receive or use them.
2. Minimizing Costs
Since probate can be lengthy and complex, the costs can add up quickly. Avoiding probate can help you save money by:
- Cutting down on legal and court costs. While a probate attorney can help navigate the probate process—their services come at a price. Opting for estate planning services may be a more cost-effective choice to safeguard your interests and prevent your family from going through probate. Additionally, probate involves court filings that carry associated fees and expenses.
- Avoiding higher executor charges. If your estate plan pays someone to manage it, the longer the estate's closure takes—the higher the potential costs.
- Reducing tax expenses where possible. Some strategies allow beneficiaries to sidestep probate and protect the estate's assets from taxation.
The costs associated with probate can differ significantly depending on the location, but they typically range from around 3% to 7% of the estate's total value. Fees you can expect to see going through probate include the following:
- Lawyer fees
- Accountant fees
- Fees for court filings and executor bonds
- Additional charges for out-of-state probate if you have assets in different jurisdictions
- Fees for publications and notices
- Translation fees for wills or other documents
3. Protecting Your Privacy
When an estate undergoes probate, all related filings become public information—meaning anyone can access the estate's probate documents. The estate planning process can help you keep these documents confidential.
Families wishing to maintain a higher level of privacy about their financial matters might consider using trusts and other estate planning instruments that prevent these details from becoming public knowledge as part of the probate process.
Law enforcement officers often have concerns about protecting their privacy due to the high-profile and often risky nature of their work. Ben has helped many Florida law enforcement families create estate plans that protect their privacy—and he would be happy to help you do the same.
4. Staying in Control
Since the court controls probate, the representative of an estate has to ask it for approval to manage certain assets, such as real estate. This can lead to considerable delays in finalizing transactions, such as selling a property belonging to the deceased.
On the other hand, estate planning to avoid probate ensures assets will be distributed according to your wishes. An estate plan is particularly important when you have a blended family or are estranged from certain close relatives. In the absence of valid estate planning documents, Florida’s intestate succession laws favor your closest living relatives by marriage or blood.
5. Lessening Emotional Distress for Family and Friends
Probate that extends over months or even years can pose significant emotional strain for family and friends. The ongoing probate process can present a situation where loved ones are repeatedly confronted with grief or are forced to engage in matters that reignite it. An unresolved probate process may hinder emotional healing and closure for some family members.
Probate can also reduce the risk of conflict between family members who may not be on good terms. By employing strategies to avoid probate, such as establishing trusts or using beneficiary designations on accounts, you can minimize the likelihood of disagreements among family members by making sure your wishes are clearly stated.
You Can Help Your Loved Ones Avoid Probate With the Right Estate Plan
Working with attorney Ben Patton can make it relatively simple to ensure that most of your assets are transferred to your beneficiaries without subjecting them to the probate process.
Estate planning strategies aimed at avoiding probate may include:
- Establishing a trust to transfer your assets. A trust can enable your loved ones to benefit from your assets during your lifetime, after your passing, or both.
- Incorporating life insurance policies. You may be able to use life insurance policies that directly pay out to your beneficiaries outside of the probate proceedings.
- Utilizing jointly held property and accounts. Using jointly held property and accounts with a right of survivorship for the individuals you wish to benefit can help avoid probate.
- Implementing planned giving. Planned giving can provide financial assistance to beneficiaries during your lifetime, which can help limit gift and estate tax obligations.
Having an estate plan is crucial for safeguarding your assets and ensuring the well-being of your loved ones after you're gone.
