Our firm handles probate cases throughout North Florida. Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s probate assets to his or her beneficiaries. Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries.
Probate costs less in Florida than in some other States, such as California. But probate proceedings do take time and money. Most of the papers filed with the probate court become matters of public record. Many people choose to avoid or minimize probate in order to save money, protect assets, spare their heirs a legal hassle, and keep their personal affairs private. This can be done during the estate planning process through use of revocable living trusts, certain kinds of accounts, beneficiary designations, enhanced life estate deeds (“Lady Bird deeds”), and other planning techniques.
"Tenancy by the entireties” is a form of joint ownership of real or personal property unique to married couples. If spouses buy a home together and certain other conditions are met, a TBE in the property is created. TBE ownership provides asset protection and includes a right of survivorship. When one spouse dies, title to the property automatically vests in the surviving spouse. This keeps the property out of probate at the death of the first spouse.
Generally, a surviving spouse should not add the name of any other relative to the property or to bank accounts. Doing so may subject the property to loss through the debts, spending habits, bankruptcy, divorce, or lawsuits of the relative. Also, making another person a co-owner (by adding the person’s name to the title or account) may be deemed a gift by the surviving spouse for purposes of the federal gift tax and may interfere with the surviving spouse’s eligibility for Medicaid long term care benefits. Enhanced life estate deeds, transfer-on-death accounts, and carefully drafted beneficiary designations offer better ways to keep property out of probate.
A will (sometimes called a “Last Will and Testament”) is a written document a person with the required mental capacity signs to provide for the orderly disposition of the willmaker’s “probate” assets after the willmaker’s death. A will has no legal effect until the willmaker dies and the original will is admitted to probate by a court. At that point the will (unlike a revocable trust) becomes public. Everyone should have a clearly written will that is prepared and executed under the supervision of a licensed attorney. Careful estate planning, including a clearly drafted will, makes your wishes clear. It can also (i) reduce the cost of probate, (ii) reduce estate and income taxes, (iii) reduce the risk of successful challenge by a disappointed relative, and (iv) protect the inheritance of the willmaker’s children by an earlier marriage. A will can include testamentary trusts to save taxes and protect the surviving spouse, minors, and disabled beneficiaries. The willmaker can use the will to nominate guardians for the willmaker’s minor children. Generally, a will does not control nonprobate assets, such as jointly owned bank accounts, pay-on-death accounts, and life insurance benefits. Be sure to review the ownership of, and beneficiary designations governing, those kinds of assets with your estate planning attorney.
Sometimes called an Advance Medical Directive, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a living will is executed along with a Durable Power of Attorney for Health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.
If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.
You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.
These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.
This is an agreement with three parties: the Trust-makers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further "back-up" managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker's death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.
Whether you are young or old, rich or poor, married or single, if you owned titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.