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Avoiding probate can save a lot of time and money for loved ones. In Florida, there are a few ways to legally avoid probate. This will allow all your assets to be quickly passed to beneficiaries with little to no hassle.
While we always recommend consulting with an experienced attorney, here are a few ways you can avoid probate in Florida.
What is Probate?
Probate is very similar across all U.S. states. Probate is a court-supervised process that identifies and distributes the assets of the deceased.
The probate court appoints a personal representative, or executor, to carry out the distribution of assets. If there was a will, this person should have been named as the executor there.
In addition to cataloging assets, a probate court will determine any outstanding debts that need settling before assets can be distributed to loved ones.
Why Should I Avoid Probate?
You should avoid probate because it's expensive and time consuming for loved ones. The legal process involves hiring attorneys, dealing with court hearings, and ensuring everything is properly documented.
In some cases, probate can take six to twelve months, leaving loved ones waiting for important assets to be distributed.
Avoiding probate means your beneficiaries receive the assets you intended for them as quickly as possible.
Plus, assets that go through probate can also be claimed by creditors to settle unpaid debts. So, not only does avoiding probate get your assets to their intended recipients faster, but it keeps more of it with loved ones, rather than going to creditors.
4 Best Ways to Avoid Probate in Florida
For your assets to avoid probate in Florida, you will have to put in some up-front work to ensure everything gets distributed as quickly as possible. It will be worth it, though.
The main ways you can avoid probate are to: set up a revocable living trust, designate beneficiaries for all accounts, and ensure any property is either jointly owned or has rights of survivorship.
Here's how to keep your assets out of probate court.
Set up a Revocable Living Trust
You can use a revocable living trust to avoid probate for almost any asset. This includes cars, bank accounts, property, or even personal belongings.
Like a will, a revocable living trust designates assets to those you choose but has the benefit of not going through probate court.
Here's how it works:
Set up a revocable living trust, where you will be the owner while you're alive
Designate a trustee to take ownership when you pass away
Designate beneficiaries of all assets in the trust
Changes can be made or revoked at any time during your life, as long as you're of sound mind
Additionally, putting property into a trust rather than a will keeps your assets out of public records. When you file a will in court, it will be recorded and available for anyone to see.
Establish a Lady Bird Deed (or Enhanced Life Estate Deed)
A lady bird deed, or enhanced life estate deed, is like a trust. It, too, is an effective tool for avoiding probate in Florida. Enhanced life estate deeds are only available in five states so, as a Florida resident, you have a unique ability to benefit from this type of deed.
With a lady bird deed, assets are immediately transferred to the beneficiary at the time of death. However, the grantor will maintain control of any assets listed on the deed for the remainder of their life. This means you can sell or mortgage the property at any point.
Similar to a revocable trust, this specific type of deed can be altered or dissolved altogether. So anything listed on the lady bird deed can be removed, or you can add more to it.
Designate Living Beneficiaries for All of Your Accounts
Make sure you aren't the only person listed on your financial accounts. When someone passes away and they are the only person listed on their bank accounts, those assets will have to go through probate.
However, if you designate beneficiaries, the accounts can bypass probate.
Payable on Death Designations for Financial Accounts
These accounts have what's called payable on death (or transfer on death) designations. This means that, upon your death, the account is immediately transferred to the named beneficiary, no probate required.
In Florida, you can add beneficiaries to financial accounts, including:
401(k)s
IRA accounts
Checking accounts
Savings accounts
Life insurance policies
Certificates of Deposit
The most common reason assets enter probate is because the decedent was the only person listed on documents such as bank accounts, land deeds, and car titles.
There are many reasons you may choose to be the only person listed on these documents during your life. If this is the case, you may want to consider a transfer on death designation.
Transfer on Death Designation for Assets
A transfer on death designation is a great way to help you avoid probate in Florida for assets such as securities or property.
In most cases, it allows the assets you list in the documentation to immediately be transferred to the beneficiary of your choice.
Add a Joint Tenancy Owner to Your Property
Any property with joint ownership is exempt from probate under Florida's Right of Survivorship law.
For example, if you own a house with your spouse it would have joint tenancy. This means it can be passed to the surviving owner immediately, without a costly or lengthy probate process.
It's important to note that there are multiple types of "joint ownership":
Joint tenants - allows you to bypass probate due to Florida's right of survivorship law.
Tenants by entireties - this is joint ownership for married couples in Florida. It also allows you to bypass probate.
Tenancy in common - this does not carry right of survivorship, and would still have to go through probate.
Is a Will Enough to Avoid Probate in Florida?
No, having a will is not enough to avoid probate in Florida. While creating a comprehensive will is important for everyone, regardless of the size of their assets, writing up a will doesn't mean your assets will avoid probate.
A will essentially tells the probate court who you want each asset to go to. The will still has to be verified as legally sound in court.
Plus, sometimes people forget to mention certain assets in the will. In that case, those assets would have to go through probate court to be distributed to beneficiaries.
Does a Trust Avoid Probate in Florida?
Yes, trusts avoid probate in Florida. Upon the death of the trustee (or owner of the trust), assets will be immediately distributed to each beneficiary.
Besides the benefit of avoiding probate, they also aren’t entered into public records like a will is. This means that you can keep your assets and beneficiaries private.
Privacy is especially important with large estates as it can protect loved ones. However, anyone can benefit from a trust, regardless of the size of their estate.
What Assets are Subject to Probate in Florida?
Technically, any asset is subject to probate in the state of Florida. Whether it's a car, retirement account, real estate, or even personal property, any asset the deceased person owned can go through probate.
Assets that have to go through probate in Florida are:
Assets that aren't held in a trust
Property with only one owner
Financial accounts that don't have a named beneficiary
Retirement accounts with no named beneficiaries
What Assets Avoid Probate in Florida?
To recap, here are the types of assets that don't go through probate in Florida:
Assets in a living trust
Financial accounts with named beneficiaries
Assets that are jointly owned or have rights of survivorship
Accounts with payable on death designations
Even if you've done everything possible to try to avoid probate, sometimes the court still needs to verify asset transfer to the beneficiaries or owners.
Need Help Avoiding Probate in Florida?
Avoiding probate in Florida can be done with the help of an experienced probate attorney.
It takes some work, but the benefits are worth it. Our experienced team can help your loved ones save money and receive your assets as quickly as possible by avoiding probate. Don’t wait! Call us or send us a message to speak with an attorney today!