Is the Probate Process Always Necessary?

probate processThe probate process takes place under the supervision of a court. We serve clients in the Southwest Florida area. In Collier County, where Naples is located, the Collier County Clerk of the Circuit Court handles probate matters. The Lee County Clerk of Courts takes care of probate matters in Fort Myers, for instance.

If you pass away in direct possession of personal property, the property will typically become probate property at first, even if you have a last will in place.

When you create a will you name an executor or executrix known as a personal representative here in Florida. This is the person who will handle the estate administration tasks. An executrix is a female estate administrator, and an executor is a male who assumes this role.

The executor or executrix must admit the will to probate, and the heirs do not receive their inheritances until after the court has probated and closed the estate.

This can create difficulties, because probate is a time-consuming process. Relatively simple cases can take somewhere in the vicinity of a year, and more complicated cases can take considerably longer.

Probate would also enter the picture if you were to pass away without any estate planning documents at all. Under these circumstances, the court would ultimately arrange for the distribution of your probate property using intestate succession laws.

Simplified Procedure

Under some limited circumstances, the full process of probate can be avoided even if you pass away in direct personal possession of property.

There is also a simplified probate procedure in Florida that can potentially be utilized if the estate that is being administered is relatively small.  An executor can potentially file a written request for a simplified probate procedure if there is no real property and there are no creditor claims. To file for a simplified procedure known as summary administration, the value of the estate must not exceed $75,000.

Probate Drawbacks

Probate is a factor if you die in direct personal possession of property that is looked upon as probate property. This process provides certain protections, but it comes with a number of pitfalls.

In a previous section we touched upon the time factor. Probate is a time-consuming process, and the inheritors don’t receive their inheritances until the process has run its course. This is one of the drawbacks, but there are others.

A considerable amount of money can be spent during the probate process. There are filing fees, legal expenses, accounting charges, appraisal fees, liquidation expenses, and the executor’s fee. All of these expenses can add up to consume a noticeable portion of the estate.

There is a third drawback to take into consideration. Probate records are available to the general public, so you lose privacy when your estate passes through probate.

Probate Avoidance

One very popular probate avoidance tool is the revocable living trust. When you create this type of trust, you maintain control of the assets while you are living. As the name suggests, you can revoke the trust at any time and it would no longer exist.

The control does not stop there. While you are alive and well, you can act as the trustee, so you direct the actions of the trust. You can also act as the initial beneficiary and take monetary distributions as you see fit.

When you draw up the trust agreement, you name a successor trustee to assume the role after you pass away. You also name successor beneficiaries. When you do in fact expire, the successor trustee can distribute resources to the successor beneficiaries outside of probate.

Avoidance of the probate process is just one of the benefits that you gain if you use a revocable living trust instead of a last will as your primary asset transfer vehicle. Spendthrift protections are also available to you. You can include a spendthrift provision, and the trust would become irrevocable after you die. Assets would be protected from the creditors of the beneficiaries, and you could allow for limited, incremental distributions to prolong the viability of the trust.

A revocable living trust can be a good choice for many, but there are other strategies that can be implemented if you want to avoid probate. The optimal course of action will vary depending on the circumstances.

Attend a Free Seminar

If you would like to learn more about probate and the probate avoidance strategies that can be implemented, attend one of our seminars. There is no charge to attend our seminars, and you should be able to identify a session that fits into your schedule. Visit our seminar schedule page to get all the details.

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We specialize in estate planning, incapacity planning, business planning, trust administration, and probate.

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