Probate is the Court supervised procedure by which someone who dies can get the property they leave behind at the time of death to their designated beneficiaries.
- Costs involved (thousands of dollars in Attorney’s fees & court costs
- Length of time it takes (6-12 months)
Do I need to have a probate if I have a Will?
Yes – If you own anything in your own name at the time of your death, a probate will be necessary to distribute your assets as you would like them to be distributed.
Do I need to have a probate if I do not have a Will?
Yes – the answer is the same as above – EXCEPT that you don’t get to say how your assets are to be distributed. Instead, Florida statutes control who gets your assets, which may not be the way you would like them to be distributed.
How can I avoid Probate?
- Joint ownership of real property or personal property (bank accounts, etc.) with another person. The survivor gets ownership upon your death without probate. Husband and wife can take title as “tenants by the entireties”, which is a special type of joint tenancy reserved for married couples. It gives protection against the creditors of one or the other one of the two partners, as well as avoiding probate.
- Life estate quitclaim deed. You own the property until your death at which time it goes to the person you name as the “remainderman”. Caveat – if you want to sell the property during your lifetime or refinance the property, you will need the remainderman to agree and sign also, UNLESS you use
- “Ladybird” quitclaim deed also known as an “Enhanced life estate deed”. This deed allows you to sell the property during your lifetime or refinance WITHOUT the consent of the remainderman. You still own it during your lifetime, and upon your death, it goes to your designated “remainderman” without the need for probate.
- T.O.D (Transfer on death) accounts allow you to transfer the asset, usually stocks or other securities, upon your death directly to a named beneficiary.
- P.O.D. (Pay on death) accounts, usually used for bank accounts or certificates of deposit. Are paid to the named beneficiary upon your death without the need for probate.
- Revocable Living Trusts – All of your assets are placed in your name as Trustee of your trust and upon your death, your successor Trustee distributes your assets in accordance with your directions, and no probate is required.
If you have any questions about the above, please feel free to contact me.
Gary I. Handin, Attorney at Law. 954-796-9600 or Ghandin@Handinlaw.com.