No, having a will does not avoid probate in Florida. A will is a letter to the judge that sets out the wishes of the deceased, such as naming beneficiaries and the person (“Personal Representative”) who will administer the estate. A will allows a person to state how property should be distributed after their death, giving instructions for financial accounts, real estate, and even personal property. Having a will avoids the state law determining how your assets will be divided. It also allows you to choose the guardian of a minor child should both parents pass away before the child. It is the instruction manual for your Personal Representative to follow in executing your desires; with your Will, they find your way of distributing your assets.

Probate is legal process to identify and gather the assets of a deceased person, paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. There are two main types of probate administration under Florida law: formal administration and summary administration. Formal is more complicated, takes longer and is more expensive than a summary administration. Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries, if the decedent does not have a trust or the trust does not administer the decedent’s estate. It may also be required to address a decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed. If the decedent left a valid Will, the Court will admit the Will (according to procedures) to probate to transfer ownership of probate assets to the named beneficiaries. If the decedent had no Will, probate might be necessary to pass ownership of the decedent’s probate assets to those receiving them under Florida law. Some assets do not require a probate proceeding to transfer ownership.

Probate provides creditors to make claims against the estate within three months, therefore, probate will be open minimally for three months; however, practically speaking, even the simplest estate will take five to six months to probate. Some estates will take longer to probate. For example, if real estate needs to be sold or creditor disputes need to resolved, the estate will more than likely take longer than six months to probate.

Generally, certain assets are subject to probate like assets owned solely by the deceased person (the “decedent”) at the time of death or assets owned jointly for which there is no provision for automatic transfer of ownership upon death. Assets that automatically transfer, such an insurance policy with a designated beneficiary or a back account with an individual identified to be payable upon death, may avoid the probate process. However, life insurance or annuity contracts payable to the decedent’s estate, bank accounts and other investment accounts solely owned by the decedent, and real estate titled solely in the name of the decedent or in the name of the decedent and another person as tenants in common will likely be a probate asset.

A Will is a letter to a judge asking him or her to administer your estate according to its terms through the probate process; whereas, a trust is a separate entity that hold ownership to property and can administer the assets it holds pursuant to the terms of the trust. Trusts may be a way to avoid probate. There are many forms of a trust, however a revocable or living trust is commonly used to hold assets (and control of a them) during a person’s life and then distribute those assets quickly and confidentially pursuant to the terms of the trust upon death. A trust provides a greater level of detailed planning than most wills and it distributes the assets held by it without the court- supervised process of probate, and, thus, provides privacy throughout the process( as opposed to public record with a court proceeding) and the costs of the court process (typically approximately 5% of the estate’s value).

The person or entity named to administer estate goes by several names – “executor”, “executrix,” “administrator” or “administratrix”, but in Florida, he or she is known as a “personal representative.” The personal representative is the person, bank or trust company appointed by the court to be in charge of administrating the deceased person’s estate.

Personal representatives have many tasks and obligations, which include identifying assets, collecting funds of the estate, valuing assets of the estate and safe keeping them, identifying debts and who the creditors are that hold the debts and providing them notice that their claims must be filed, hiring an attorney and other professionals such as accountants and appraisers, filing tax returns and paying taxes, paying claims against the estate, and distributing assets to beneficiaries. It is a big job, and one typically held by someone closest to the decedent at a time when they are grieving the loss of a loved one.

Yes. If you appendix burst, would you do the surgery or seek a surgeon? Florida law requires a lawyer be involved for almost all probate administrations. The lawyer advises the personal representative on the probate process and represent the estate’s interests in probate proceedings. Even in small presumably easy and straight-forward estates, non-lawyer find themselves in situations they are not familiar with and do not know what to do. Having an attorney to explain these issues and provide guidance to resolution is invaluable.

Power of Attorney.

A Power of Attorney is a document that is effective during your lifetime, which allows another person to handle your finances. Most commonly, they are intended to allow someone to manage your day-to-day financial affairs when you are not able to do so. They can also be for a particular purpose (such as selling a home) if you are unavailable for whatever reason.

Health Care Surrogate

A Health Care Surrogate is the document that designates the individual who can make health care decisions on your behalf when you are unable to do so.

Living Wills

A Living Will may irreverently be called the “pull the plug” document. It instructs your desire to (or not to) artificially prolong your life if you are incapacitated, in a persistent vegetive state, have a terminal or end stage condition.

First, you need to ensure that you have taken all steps to finalize your estate plan. For example, with a trust, you need to ensure that you have funded the trust as the trust can only administer assets it owns. You also need to ensure that your beneficiary designations are up to date. Put simply, you must first be sure that you’ve done it right to begin with. Next, your estate plan is a living instrument. It changes with your circumstances. You should review it at least every two to three years (sooner if major life changes occur – such as a move, you have another child, someone included in the plan passes away, you get married or divorced, you come into an inheritance, or your kids move out).

Many pay attention to their personal legacy and forget to address their business interests. Like you as an individual, your business needs a plan as well. These plans are referred to as “succession planning”. These plans smooth the transition of your business and its assets, giving you insight and control over what happens to your business when you die or become incapacitated. Absent a succession plan, your business operations, management and ownership structure may slow or stop completely. Business owners – Creation of a succession plan as part of your estate plan is necessary to ensure that whoever replaces you as a business owner is someone you fully trust and who is invested in your business in such a way so as to limit your ongoing business activity. Provide you and your stakeholders with a clear expectation as to how your business will smoothly transition in line with the company’s mission and vision upon your death or incapacity.

Furry babies – they’re almost as important as your human babies. Some (typically without fur) may outlive you. In Florida, you can protect your pet’s future after your death or incapacitation by using a pet trust, which provides monies to assist with the care of your pets as well as instructions of how you wish for them to be cared for when you are unable to do so. You have to designate a responsible trustee (or allow the court to select one) who is responsible for managing and spending the funds you place in the pet trust.

Florida does not have an estate tax or an inheritance tax; the Federal Government does have Federal Estate Taxes and Florida residents must abide by those rules and obligations.

Yes, but… DIY estate planning services exist; they provide easy-to-make wills and Powers of Attorney online. These forms may provide some financial and time-saving benefits and many people use them; BUT they can also lead to extremely expensive mistakes and ultimately be invalidated or not do what you think they do. There are so many risks involved: mistakes and errors can lead to expensive litigation, the forms may not being customized to Florida law and thus have limited impact, you may improperly execute the documents (leading to them being found invalid), or you might overlook key considerations in developing your estate (legacy) plan. You spent your lifetime building your wealth; invest in proper advice and documents to preserve it.

Absolutely not! Without an estate plan in place, the State has one for you. It’s called “intestacy” and it is where state law dictates how your assets will be distributed through a court process of probate. Those with limited assets will likely feel the costs of this process more than those with significant assets as your beneficiaries will be deprived the benefit of assets diminished by the costs of the process. Upon one’s death or incapacity, there are so many emotions and questions. People need to make important decisions about your care, grieve your loss, or celebrate the life you lived. In the midst of this, absent a plan, they will also have to learn about and endure all the processes necessary to wrap up your affairs. Litigation (probate) is for lawyers and judges, not grieving families. Plans should be in place to avoid costly court proceedings and to clearly inform the loved ones you leave behind of your circumstances and desires so that you have time to grieve the passing of a loved one or to celebrate their life.