How To Avoid Probate In Florida

Many Florida residents look for estate planning tips they can use to make sure their estates avoid probate legally, simplifying the legal and financial demands of estate administration for their loved ones. Trusts and Wills, used in combination, are among the most powerful estate planning tools commonly used for this purpose – but there are many others that may be considered, depending on the nature of your assets and the beneficiaries to whom you hope to leave them. At Loughlin Law, P.A., we welcome the opportunity to discuss the details of estate planning and help clients find solutions that meet their needs. Call 561-559-6214 today to set up a consultation.

What Is Probate?

The word probate may be used narrowly, to refer to the process of “proving” a Last Will and Testament (i.e., verifying the document’s validity) and then disposing of the property in the testator’s estate in accordance with the directions set out in the Will. The same term may also be used more broadly, to cover the whole process of estate administration that involves not only proving a decedent’s Will but discharging the individual’s outstanding financial obligations and closing his or her accounts or transferring them to beneficiaries, ensuring an orderly conclusion to the “loose ends” that most of us leave behind at our deaths.

In Florida, the term estate administration is typically used in legal contexts, rather than probate. This can occasionally lead to some confusion, as there are two types of estate administration in Florida. One of these, called formal administration, much more closely aligns with the expectations commonly associated with the word probate in everyday usage than does its simplified counterpart, summary administration. As a result, when Florida residents sit down to work out an estate plan that will help the loved ones they leave behind avoid probate legally, in most cases they will be applying estate planning tips tailored toward ensuring that the estate qualifies for summary administration, rather than the more formal probate process.

Summary vs. Formal Administration for Florida Probate

The first step to structuring an estate plan that will simplify your loved ones’ lives by ensuring your estate qualifies for summary administration is to understand the criteria for summary administration under Florida law. Essentially, while estate administration can almost always be carried out through formal probate proceedings, Florida probate law only offers summary administration as an option when certain conditions are met.

The two conditions that may qualify an estate for summary administration are:

• When the decedent passed away two or more years prior to the probate filing
• When the sum of all property in the probate estate comes to a total no greater than $75,000

Most individuals preparing their estate plans do not expect their families to wait more than two years before initiating probate, so as a general rule estate planning tips for avoiding probate legally in Florida center on strategies for limiting the size of the probate estate.

What Is the Probate Estate?

The “probate estate” consists of the property an individual leaves behind at his or her death that is not eligible to be transferred outside the probate process. Property that is eligible for a non-probate transfer is called “exempt” property. Because the criteria for summary administration are based on the size of the probate estate, assets that are exempt from probate are typically excluded from the calculations used to determine eligibility for summary administration.

There are certain types of property that are automatically considered exempt from probate. Other assets may sometimes be exempt as well, depending on the mechanism by which they are transferred to beneficiaries. An estate planning attorney with Loughlin Law, P.A. may be able to help you develop a suite of estate planning tools tailored to the types of property you wish to leave your loved ones.

Common Estate Planning Tools for Avoiding Probate

There are a number of estate planning tools that Florida residents can use to avoid probate legally. However, not all of them will apply in every situation, and in many cases the documents designed to effect the non-probate transfer of assets will need to be customized for each individual set of circumstances.

Trusts and Wills

Property that is left to loved ones in a Last Will and Testament cannot, by definition, avoid administration entirely, as the terms in a Will can only be carried out once the document has been “proved” – that is, reviewed and confirmed to be valid – by a probate court. Using a tailored Will in combination with an appropriately structured trust, however, can often be a very effective strategy for ensuring that an estate qualifies for summary administration rather than formal probate under Florida law, as well as for protecting trust assets from the potential claims of creditors during estate administration.

Revocable Living Trust With Pour-Over Will

One of the most common ways to use a Will in conjunction with a trust is to create a revocable living trust into which the grantor or settlor places many of their assets, and also a Pour-Over Will that directs the disposition of whatever personal property is not already in the trust at the time of the individual’s death. The primary advantage of creating a revocable vs. irrevocable trust is that the grantor or settlor retains the ability to modify the terms of the trust throughout his or her lifetime. Creating a Pour-Over Will essentially simplifies the duties of the personal representative with respect to the disposition of property down to making sure assets are properly transferred into the trust, which will then be administered by the successor trustee in accordance with the terms set out in the trust instrument (the document that establishes a trust and specifies its terms).

Limitations of Revocable Trusts

While revocable trusts can be powerful estate planning tools, they have limitations. Assets held in a trust avoid probate in the sense that they will not need to be distributed by the personal representative of the estate, but they are not necessarily exempt from probate requirements such as creditors’ claims and the elective share of the surviving spouse, according to the Florida Bar Association. Consequently, it is important in establishing a trust to plan ahead for such matters as debts that may potentially be left outstanding at the time of your death, and make provision for how they should be paid, as well as taking into consideration the fact that the elective share of a surviving spouse, mandated under Florida §§ 732.2025-2155, can supersede any provisions made in a Last Will and Testament if the provision made for the spouse accords him or her a lesser share than the 30% to which surviving spouses are entitled under Florida law.

The elective share of the surviving spouse may be particularly important to keep in mind when evaluating options for working with trusts and Sills as estate planning tools. By taking the protections Florida law affords surviving spouses into account as you structure your estate plan, you gain the opportunity to ensure that the terms set out in the Will are at least sufficient to match the elective share, which in turn can give you much greater flexibility in how you direct the disposition of the remaining property in your estate – by Will, by trust, or by a combination of trusts and Wills.

Speak With a Florida Attorney

Estate planning tips encountered in online guides may be helpful in getting started with your estate plan, but if you are making it a priority to ensure your estate can avoid probate legally, you may wish to consider speaking with an estate planning attorney familiar with the Florida probate process. Beyond trusts and Wills, many other estate planning tools can be used in combination with these centerpieces to transfer assets outside of probate as part of a comprehensive estate plan. Schedule a consultation with a Boca Raton probate attorney by calling Loughlin Law, P.A. at 561-559-6214 today.