What is Probate, and How Can I Avoid It?

At Bianchi Fasani Green Law, we often hear from clients who are concerned about probate. Many have heard it’s something to avoid but aren’t quite sure why. In this post, we’ll demystify probate and explore strategies to minimize its impact on your estate.

What is Probate?

Probate is the legal process of administering a deceased person’s estate. It involves validating the will (if there is one), identifying and appraising assets, paying debts and taxes, and distributing the remaining assets to beneficiaries. While this might sound straightforward, probate can often be time-consuming, expensive, and public.

In Florida, probate is overseen by the circuit courts. The process typically involves several steps:

1. Filing a petition with the probate court
2. Notifying heirs and creditors
3. Inventorying the deceased’s assets
4. Paying debts and taxes
5. Distributing remaining assets to beneficiaries

The Drawbacks of Probate

While probate serves important functions, it comes with several potential drawbacks:

1. Time-Consuming

Probate can take months or even years to complete, depending on the complexity of the estate and whether any disputes arise. During this time, assets are typically frozen, potentially causing financial strain for beneficiaries.

2. Expensive

Probate costs can eat into the estate’s value. Expenses may include court fees, attorney fees, executor fees, and other administrative costs. In Florida, these fees can amount to 3% to 7% of the estate’s value.

3. Public Process

Probate proceedings are a matter of public record. This means that anyone can access information about the assets in the estate, their value, and who inherits them. For many families, this loss of privacy is concerning.

4. Potential for Disputes

The public nature of probate can sometimes lead to disputes among beneficiaries or challenges to the will, further prolonging the process and increasing costs.

Strategies to Avoid Probate in Florida

Now that we understand why probate can be problematic, let’s explore some strategies to avoid or minimize it:

1. Create a Living Trust

A revocable living trust is one of the most effective tools for avoiding probate. Here’s how it works:

• You create a trust and transfer ownership of your assets to the trust.
• You maintain control of these assets as the trustee during your lifetime.
• Upon your death, your designated successor trustee distributes the assets according to your instructions, bypassing probate.

At BFG Law, we’ve helped many clients set up living trusts tailored to their specific needs and goals.

2. Joint Ownership

Holding property in joint ownership with rights of survivorship is another way to avoid probate. When one owner dies, the property automatically passes to the surviving owner(s) without going through probate.

3. Beneficiary Designations

Many assets—including life insurance policies, retirement accounts, and certain bank accounts—allow you to name beneficiaries. These assets pass directly to the named beneficiaries upon your death, bypassing probate.

4. Gifting

Transferring property during your lifetime can help reduce the size of your probate estate, simplifying the process for your heirs. However, it’s important to consider the tax implications. When property is gifted, the recipient inherits the original tax basis (referred to as the carryover basis) rather than benefiting from a stepped-up basis, which could result in higher capital gains taxes if the property is sold. Additionally, under 2024 tax laws, you can gift up to $18,000 per person annually without triggering federal gift tax, though gifts exceeding this amount may require filing a gift tax return and count against the lifetime estate and gift tax exemption.

5. Small Estate Procedures

Florida law provides simplified probate procedures for small estates. As of 2024, estates valued at less than $75,000 (excluding the value of the homestead property) may qualify for summary administration, a quicker and less expensive process than formal probate.

The Importance of Comprehensive Estate Planning

While these strategies can be effective in avoiding probate, it’s important to remember that probate avoidance is just one aspect of comprehensive estate planning. At BFG Law, we take a holistic approach to estate planning, considering factors such as:

• Asset protection
• Tax minimization
• Incapacity planning
• Business succession (if applicable)
• Charitable giving goals

We work closely with each client to develop a personalized estate plan that addresses their unique circumstances and objectives.

When Probate Might Be Necessary

Despite best efforts to avoid probate, there are situations where it may still be necessary. For example:

• If you die without a will or trust (intestate)
• If you have assets solely in your name that don’t have beneficiary designations
• If there are disputes over the will or distribution of assets

In these cases, having a clear, legally sound will becomes crucial. While it won’t avoid probate, a well-drafted will can streamline the process and ensure your wishes are carried out.

How An Estate Planning Attorney Can Help

Handling probate and estate planning can be complicated, especially given Florida’s specific laws and procedures. That’s where a seasoned estate planning attorney comes in.

At BFG Law, we:

1. Assess your unique situation and goals
2. Explain your options in clear, understandable terms
3. Develop a comprehensive estate plan tailored to your needs
4. Ensure all documents are properly prepared and executed
5. Provide ongoing support as your life circumstances change

Our goal is not just to help you avoid probate but to create a robust estate plan that provides peace of mind and security for you and your loved ones.

Take Action Now

While it’s easy to put off estate planning, the truth is that none of us know what tomorrow may bring. By taking action now, you can protect your assets, secure your family’s future, and ensure your wishes are honored.

Don’t leave your legacy to chance. Contact BFG Law today to schedule a consultation with one of our experienced estate planning attorneys. We’ll help you navigate the complexities of probate avoidance and create an estate plan that truly reflects your wishes.

Remember, effective estate planning isn’t an expense—it’s an investment in your family’s security and your own peace of mind. Let’s work together to create a plan that protects what matters most to you.