How Can I Avoid Probate?

Attorney L. Reed Bloodworth is Founder and CEO of Bloodworth Law, based in Orlando, Florida, with offices in Winter Haven, Florida. 

Reed talks about one of the most asked questions in Florida estate planning: How Can I Avoid Probate? And the answer is that the only way to avoid probate is to ensure no assets have to pass through probate by consulting with an estate planning attorney.

Consult With An Estate Planning Attorney 

Can you avoid probate? This can only be answered after providing all necessary information to an experienced Florida estate planning attorney who will ensure that your estate planning documents comply with Florida law.

Estate Planning must be handled by an attorney to ensure that estate planning documents are created properly. If they’re incorrect, they’re not legal and can place you and your benefactors directly into probate.

Incorrect wills, trusts, health directives, and any incorrect estate planning documents will be voided by Florida courts causing extensive and expensive probate costs.

How to Avoid Probate

Avoiding probate is no simple task because what this means is that you’re ensuring all assets are in a revocable trust before death, or using payable on death designations for accounts, or titling assets joint-with-right-of-survivorship. But the value of assets must be considered and is a deciding factor for whether you can avoid probate.

An estate planning attorney ensures:

• That all estate planning documents are properly executed
• That assets are placed in a revocable trust before death
• That financial, investment, insurance accounts use payable on death or transfer on death designations
• That titling of assets is designated jointly with-right-of-survivorship where possible.

Beneficiaries 

Beneficiaries are added to life insurance policies and financial accounts allowing beneficiaries, or payable on death, or transfer on death persons to be named. Here are some examples: 

• 100% to Jane Doe
• 50% to Jane Doe and 50% to John Doe
• 30% to Jane Doe, 20% to John Doe and 50% to Goofy
• 100% to charity X or the split you want
• If you have a trust, the beneficiaries are named in the trust and the trustee divides assets in accordance with the terms of the trust.

Property and Housing 

If you own a home or property:

• If it’s owned with another person and the goal is for the survivor to inherit the house, a right of survivorship must be included in the deed.
• If it is owned by a husband and wife, the deed usually reflects “husband and wife” which means tenancy by the entirety.
  • Tenancy by the entirety means there is an automatic transfer to the surviving spouse.
• Property can be owned by a trust, an LLC, or another estate planning entity.
• Create a Lady Bird Deed. Give yourself life estate in the property and upon death and the recording of the death certificate, the property passes to the person(s) named in the deed.
  • A Lady Bird Deed can be created for a trustee.

Creditors 

What about creditors? If a decedent has more debts than assets, probate may not be the best avenue and could be more expensive than it’s worth.  

Any creditor can probate an estate within two years of death to try and get paid. There is no obligation for a beneficiary to open an estate if all the assets are going to go to the creditors. If the two-year creditor period has expired, then it might make sense to probate an estate.

Speak With an Experienced Attorney 

Again, the answer to the question: “how can I avoid probate?” may only be answered by a skilled Florida estate planning attorney.

Only an estate planning attorney can ensure that your trust or estate documents comply with Florida law and it’s never been more important that your estate planning documents are legal. 

Bloodworth Law serves as legal counsel for Floridians across the state. Our Estate Planning Team can work with you remotely, via Zoom, or in the office with safety measures taken to protect you as they help you with your legal issues.