One of the most common questions we receive is: "What is probate, and how do I avoid it?" While probate is often perceived as something to steer clear of, it is not inherently "bad." This blog explores the role of probate court, clarifies its purpose, and dispels common misconceptions surrounding the process.
What is Probate?
Let's begin by answering the first question: "What is probate?" Probate is a court-supervised process for validating and distributing a deceased person’s assets. This includes settling debts and transferring property as outlined in a will or, if there is no will, according to Florida law. Florida’s laws of intestate succession favor close relatives as specified in Florida Statute Section 732. If someone wishes to pass their property in a different manner than prescribed by this statute, then a will or trust is necessary. The most common beneficiaries who would never receive property under Florida intestate law (no will) are romantic partners, including fiancés, stepchildren, pets, or very close friends. In such cases, intestate probate could lead to an undesirable outcome if it does not align with the deceased’s intentions.
Privacy Concerns
Probate is a public court process, meaning that information about beneficiaries, assets, and other details becomes accessible to the public, including creditors. While not all trusts shield assets from creditors, probate proceedings require that creditors be given notice. This notification occurs through personal service to known creditors and publication in a local newspaper. If maintaining privacy is important to you, probate may not be the best option.
The Double-Edged Sword of Privacy and Probate Costs
Some might think, "If probate is bad, I'll just create a trust and avoid it altogether." While an open court process may seem problematic or expensive, it has advantages. The most significant benefit is that a neutral judge oversees the process, ensuring the will or applicable law is followed. In contrast, trusts are administered privately and controlled entirely by the named trustee. Only those listed in the trust are notified, and their rights are dictated by the trust document or Florida law.
If a beneficiary feels they are being treated unfairly, has a dislike for the Trustee or restrictions of the trust, they may file a civil lawsuit, leading to legal issues similar to those seen in probate. Therefore, trusts do not necessarily reduce conflicts and can sometimes create additional legal challenges.
As for costs, even a trust requires a trustee, who will likely charge a fee, and the trustee often hires a lawyer who also needs to be compensated. In many cases, probate and trust administration can involve comparable expenses.
What is the Best Plan for You and Your Beneficiaries?
The best way to ensure your wishes are carried out—and to determine how/whether probate should be avoided—is to work with an experienced estate planning attorney. Every individual, family, and beneficiary group has different needs, goals, and dynamics. Consulting with an estate planning lawyer can help you create a customized plan that aligns with your specific circumstances.
If you have any questions about the probate process or need assistance preparing or updating your estate plan, please contact Taitt Legal.
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