When you hear people speak about probate, it can sometimes seem as though they view it with equal parts dread and disdain. For many individuals and families, one of the main reasons for engaging in comprehensive estate planning is the desire to avoid the probate process altogether. Given the time and cost involved in many probate actions, that desire is perhaps understandable. At the same time, however, it is important to understand that probate is not necessarily a bad thing. To understand why that is true, all that you need to do is understand why the Florida probate court process is such an integral part of our system for settling so many decedent’s estates.
What is Probate Designed to Do?
Under Florida law, probate is the designated legal process used to determine just how much any given estate is worth and to ensure that the decedent’s assets are properly disposed of. That process involves not only an assessment of the value of all of the deceased’s property, but also the settling of his or her outstanding debts to creditors, the payment of any taxes that might be due, and the distribution of the remaining assets to any heirs. The court proceedings that supervise this process are conducted in the circuit court that has jurisdiction over the county where the decedent lived.
Isn’t That What a Will is Designed to Do?
Your Last Will and Testament is an important document but it has no power in and of itself. It cannot help you to avoid probate, and it cannot be used to settle your estate when you die – until it is declared valid by a judge during the probate proceeding. Obviously, the will might seem to share some things in common with the process used to settle an estate – most notably when it comes to the distribution of any inheritance, since the will can declare where you want those assets to go. That is really where the similarity ends, however.
Your will typically won’t provide an assessment of your estate’s value. This task is left to the executor of the will, under the supervision of the probate court. Neither will your Last Will and Testament locate your creditors and pay your debts. That too is part of the probate process. Your will cannot even distribute assets on its own. It merely details what you want to leave behind and to whom, so that the probate process can ensure that your heirs get the inheritance you opt to provide for them.
Wills are important tools to have in your estate plan, of course, but you should never confuse them with the court-supervised process that actually enforces their provisions. You should, however, make sure that you have a properly crafted will created, and you should update its provisions throughout your life to reflect any changes in your circumstances or desires.
What if There is No Will?
As important as probate is to the proper settling of many estates, it is essential that individuals make sure that they have a will to prevent their estates from being settled in accordance with intestate law. Intestate law governs the distribution of estates that have no will, and Intestate can lead to results that might be very different than those you intend. Since Florida’s intestacy laws determine the priority of any asset distribution to your heirs, you may end up leaving assets to people you might otherwise have left nothing – and vice versa. Moreover, probate costs for intestate matters can be higher than normal as well.
That All Sounds Good, But How Do I Avoid it?
Of course, you might still find that you want to help your heirs avoid the time and cost factors associated with the probate process. That’s understandable, as many people just want to ensure that their heirs receive their inheritance as quickly as possible, and without any losses that might result from probate costs. There are several ways to avoid probate:
- It is possible under Florida law to avoid probate altogether when the estate meets certain qualifications. That requires the filing of a Small Estates form, which is designed to appeal to the court to allow the estate to be dispensed without going through the formal probate process. The estate’s assets must meet certain requirements – and must be less than the costs of any funeral expenses.
- You can plan your estate using tools that ensure that your assets are not subject to probate. Since probate is a process designed to ensure that your assets are distributed properly, the best way to avoid probate is to make sure that you have no assets in your name that might need to be probated. This can be accomplished using various trusts, transfer-on-death account options, and beneficiary designations for things like retirement accounts and life insurance policies.
What About an Attorney?
An attorney with experience in estate planning and probate matters can be of critical help at any stage of the process. He or she can help you to ensure that your will, trusts, and any other planning tools are properly executed in a way that meets your needs. That attorney can even provide assistance if you find yourself trying to navigate the probate process after a loved one dies. As necessary as the probate process is in the state of Florida, it can be complex as well. An attorney can help you sort through the confusion to ensure that your interests are protected.
At Robert Kulas Attorneys at Law, we can help you to better understand the probate process and its important role in many estates. We can also help you to develop the comprehensive estate plan you need to ensure that your assets can be distributed without probate, if that’s something that better suits your needs. Finally, we can help you with probate administration issues that might arise if you’ve been named as the executor of a will. To find out more about how we can help you with any of these issues – or other matters related to your estate planning efforts, contact us online or call us at (772) 398-0720 today.
