Reasons to Avoid Florida Probate

This article was written by Elan R. Kaney, Esq., a Florida attorney with more than 25 years of experience concentrating in probate, estate planning, business law and tax law.

Probate is the legal process used to transfer a deceased person's assets to their heirs and beneficiaries. In some cases, probate is unavoidable. However, with thoughtful estate planning, many assets can pass to your loved ones without the delays, costs, and public nature of probate.

Avoiding probate doesn't mean avoiding the law—it means arranging your affairs so that your family can receive many of your assets more efficiently after your death.

Here are some of the reasons many Florida families choose to minimize or avoid probate whenever possible.

Reason #1 to Avoid Florida Probate

Probate Can Delay Access to Assets

Probate rarely happens overnight.

Even relatively simple estates can take months to administer, and more complex estates may remain open for a year or longer.

During that time, your family may need money to pay:

• funeral expenses;

• mortgage payments;

• property taxes;

• homeowner's insurance;

• utilities;

• maintenance costs; and

• other ongoing expenses.

Proper estate planning can allow certain assets to pass directly to your beneficiaries without waiting for the probate process to conclude.

Reason #2 to Avoid Florida Probate

Court Supervision Is Often Required

A probate estate is administered under the supervision of the probate court.

Depending on the circumstances, the Personal Representative may need court approval—or at least be subject to court oversight—for significant actions involving estate assets.

For example, the estate may need to address:

• selling or managing real estate;

• operating or winding down a business;

• resolving creditor claims;

• handling litigation;

• administering investment accounts; or

• disposing of burdensome assets.

Although court supervision provides important protections, it can also increase the time, paperwork, and expense involved in administering an estate.

Reason #3 to Avoid Florida Probate

Probate Can Be Expensive

Administering a probate estate involves a variety of costs, including:

• attorney's fees;

• court filing fees;

• publication costs;

• certified copies;

• appraisal fees;

• accounting fees; and

• other administrative expenses.

In Florida, the attorney representing the Personal Representative is entitled to reasonable compensation, and the Florida Probate Code establishes fee guidelines that are presumed reasonable in many cases.

Additional fees may be appropriate for extraordinary services, such as:

• probate litigation;

• will contests;

• tax matters;

• business administration;

• real estate litigation;

• locating missing heirs; and

• other unusually complex issues.

While probate is often necessary, reducing the assets that must pass through probate can significantly reduce overall administration costs.

Reason #4 to Avoid Florida Probate

Probate Is a Public Court Proceeding

One of the most overlooked aspects of probate is that the court file is generally a matter of public record.

Depending on the circumstances, probate records may include:

• the Will;

• inventories of estate assets;

• creditor claims;

• petitions filed with the court;

• accountings;

• names and addresses of beneficiaries; and

• other financial information.

Anyone can generally review these records unless they have been sealed by the court.

Assets that pass outside of probate—such as those owned by a properly funded Revocable Living Trust or transferred by beneficiary designation—generally remain private.

Reason #5 to Avoid Florida Probate

Proper Estate Planning Can Reduce Probate

The good news is that many assets can be structured to avoid probate altogether.

Common probate-avoidance strategies include:

• Revocable Living Trusts;

• Lady Bird Deeds (Enhanced Life Estate Deeds);

• Payable-on-Death (POD) designations;

• Transfer-on-Death (TOD) designations where available;

• Joint ownership with rights of survivorship; and

• Proper beneficiary designations for retirement accounts and life insurance.

The best strategy depends upon your assets, your family, and your long-term goals.

Estate Planning Is About Making Things Easier for Your Family

For many families, probate is manageable. For others, it can become time-consuming, expensive, and emotionally draining.

A thoughtfully prepared estate plan can simplify the transfer of your assets, reduce costs, maintain privacy, and help your loved ones avoid unnecessary delays during an already difficult time.

If your goal is to make life easier for your family after your death, minimizing probate should be an important part of your estate planning strategy.

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