How and Why to Avoid Probate
Updated: Apr 3
If you’ve considered a life plan before, and have discussed it with an attorney (or explored marketing materials for estate planning), then chances are that you’ve also heard about the perils wrought by the probate process. There is quite a bit of truth to these warnings. Though probate is not always as significant a burden as portrayed by some attorneys Florida probate can be excessively expensive, time-consuming, and uncertain.
Depending on the extent and structure of the estate assets, as well as the possibility of outside claims (i.e., creditors) and conflicts between heirs, the formal probate process can take up to six months or longer and may leave your designated descendants with substantially less than you intended for them. Fortunately, there are several ways in which you can avoid the hassles of probate, particularly if you own real estate properties.
Worth noting: Florida has multiple simplified, fast-track probate processes. One such process, summary administration, applies to estates with less than $75,000 or the decedent passed away more than two years ago. Fla. Stat. § 735.201. “Homestead” real estate is not counted towards this $75,000 maximum, so if you feel that you may qualify, we encourage you to contact us for a discussion about these more simplified probate processes.
Avoiding Probate of Real Estate Property
If you’d like to avoid having to probate your real estate assets, here are two options available to you:
1. Joint Tenancy (with Rights of Survivorship)
2. Various Forms of a Trust
If you hold real estate property as a joint tenant with rights of survivorship, then the other owner will receive 100 percent ownership of the property when you die. The property will not have to go through the formal probate process. This can be rather useful for those who would like to pass a significant real estate asset to a loved one without setting up a trust or using some other mechanism. These other mechanisms will require additional expertise, supervision, and management that we are happy to discuss with you.
If you wish to pass property onto your spouse, you can hold real estate in a joint tenancy form known as tenancy by entirety, which accomplishes the same function as joint tenancy with rights of survivorship. Even with this setup, the surviving owner will likely still be limited on what they can do with the property. We are happy to discuss the options available to the surviving spouse.
Of course, structuring property as a joint tenancy is not always ideal. Some people would rather have more control over the real estate asset at-issue. For example, if you have a mixed family situation, then you may be worried that your spouse from your second marriage (who may have a poor relationship with the children from your first marriage) will not share your home with your children if they gain full ownership. To avoid this situation, you could hold your real estate property in a trust, and distribute ownership to multiple heirs, or even impose specific requirements for sharing the property.
There are a number of trusts that you can use, including but not limited to the relatively straightforward revocable living trust. The key takeaway, however, is that by putting your real estate into a trust, the “trust” will become the owner of the property — as such, the property will not have to go through probate.
Curious about what you need to do to avoid probate? Contact us to learn more.
This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Law Offices of Mark F. Moss, PLLC, through this site does not form an attorney/client relationship.