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May 27, 2020

What is Florida Probate and Why Should I Avoid It?

People unfamiliar with estate planning or probate may think that the easiest way to settle their estate is to avoid making a will or to make a simple will while avoiding the seemingly more complicated issue of creating trusts. However, many people don’t realize the drawbacks of allowing their estate to go through probate and what the process actually entails.

What is Florida Probate?

After someone dies, probate is the legal process that distributes and assets (such as money and property) and settles debts. The court will inventory the assets, then pays debts owed by the estate and distribute the remaining assets to the deceased’s heirs as requested in their will. If, however, no will exists, Florida law controls how the assets will be distributed.

Why Avoid Probate?

Probate is Public

Probate is administered by the courts, so all documents or information the probate processes uses is entered in the public record. This means not only estate debts and assets, but distributions made as well. This can set the beneficiaries up as burglary or scam targets once the world knows you just inherited $3 million from your long-lost great uncle. Or alternatively, there may be embarrassing debts that are know well known.

Probate Depends on Court Approval

As a court-supervised proceeding, probate requires court approval every step along the way, and to obtain court approval everyone involved must follow extensive rules and procedures. Courts must approve:

  • Appointing an estate’s initial personal representative
  • If there is a will, proving its validity
  • Confirming property dispositions
  • Approving the estate’s inventory and accounting
  • Settling creditor or beneficiary disputes
  • Approval of the estate’s final distribution

Trusts, by contrast usually require no court involvement for administration.

Probate is a Slow Process

Probate can be a time-consuming process because it’s controlled by courts. If the will is uncontested, it can still take months or even a year to fully administer a probate estate. If there are disputes, the estate is complicated, or someone contests the will, it can take quite a bit longer.

Creditors May Claim Part of Your Estate           

During probate, the personal representative of the estate must formally notify all known creditors of the deceased. The notice informs your creditors that if they want anything, they need to act within a certain time period to file a claim. If they do so in probate court and there are sufficient assets to pay, they will be able to collect debts you owed from your probate estate.  Unknown creditors will be notified by a publication in a local newspaper.

Probate is Costly

Probate can be a very expensive process. Not only can the probate process take up to 10% of the gross estate in probate fees, it may also take money out of the estate to conduct various parts of the process like assigning lawyers to protect the interests of minor heirs. Additionally, if parties involved choose not to represent themselves during probate, attorneys’ fees may be taken out of the estate as well.

Contact a Florida Estate Planning Lawyer

Though thinking about your eventual demise is never first on anyone’s list, it’s important to plan ahead if you want the final say in what happens to your assets and want to keep as much of your estate out of court and away from the public eye and the IRS. The experienced estate planning attorneys at The Legacy Law Firm can review your unique situation and help you develop a plan that carries out your wishes and protects your estate as much as possible. Contact us today to learn more and get started.


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