Can Probate Be Avoided?

Probate is the court directed process used to transfer the assets of a deceased person where such assets are only in the decedent’s name at the time of death and no beneficiary is designated on such assets.

Probate can be avoided if accounts are jointly held or the accounts provide that beneficiaries are to receive such accounts upon death. Some financial institutions use designations like “pay on death” or “transfer on death”. In such circumstances, the accounts transferred to the beneficiary by operation of law upon the death of the account holder.

Life insurance policies and investment accounts usually have options for beneficiary designations. In such cases, the owner of the policy or account may designate a beneficiary to receive the policy or account upon the owner’s death. Upon death, the beneficiary receives such asset with the need for probate.

Accounts that are in joint names become the sole property of the survivor, unless such accounts were put in joint names for “convenience”. See, Florida Statute §655.79.

Proper estate planning can also reduce or even eliminate the need for probate. Common probate avoidance tools include revocable living trusts, jointly owned real property, and the use of an enhanced life estate deed.

One of the most effective ways to avoid probate in Florida is through the use of a revocable living trust. Assets properly titled in the name of the trust may pass to beneficiaries without court involvement. The trustee (manager) of a revocable trust holds assets and makes distributions of such assets to the designated beneficiaries and the trust document. Because the assets are in the name of the trust prior to death, there is no need to use the probate process to transfer the decedents assets.

Careful planning can also help reduce delays, maintain privacy, and simplify the transfer of assets to loved ones. Our office can help you evaluate probate avoidance options and create comprehensive estate plans tailored to your needs.