How to avoid probate in Florida: planning ahead for your family

Probate is the court process that transfers a person's property after death. In Florida, a formal administration usually takes six to twelve months, involves court filings that become public record, and requires the personal representative, the person who settles the estate, to be represented by an attorney. With planning, much of what a family owns can pass directly to the people chosen to receive it, without a probate case at all.

Why a will alone does not avoid probate

A will is essential, but it does not keep property out of court. A will tells the probate court who should receive your property and who should manage the process, and the property still passes through probate. Whether probate can be avoided depends on how each asset is owned and who is named to receive it.

Tools that pass property without probate

• A revocable living trust. Assets titled in the name of your trust pass to your beneficiaries under the trust's terms, without court involvement. You remain in control during your lifetime and can change the trust at any time.
• A Lady Bird deed. This Florida deed passes your home to the people you name at your death while you keep full control during your lifetime, including the right to sell or refinance.
• Beneficiary designations. Life insurance, IRAs, 401(k) plans, and annuities pass directly to the beneficiaries named with each company.
• Payable-on-death and transfer-on-death registrations. Bank accounts can be set up to pay a named person at death, and brokerage accounts can be registered to transfer on death.
• Joint ownership with rights of survivorship. Property owned this way passes to the surviving owner automatically. Married couples in Florida often own their home and accounts as tenants by the entirety, a form of joint ownership available only to spouses, and that property passes to the surviving spouse.

When joint ownership creates new problems

Adding an adult child to a deed or a bank account can avoid probate, but it also gives that child an ownership interest right away. The property can become exposed to the child's creditors or divorce, the transfer may be treated as a gift, and the family can lose valuable income tax benefits when the property is later sold. For these reasons, a Lady Bird deed or a trust is usually the safer way to reach the same goal.

Planning for the Florida homestead

A Florida homestead receives special protection. When there is a surviving spouse or a minor child, Florida's constitution limits how the home can be left, and a plan that overlooks these rules may not work as intended. If the home is not covered by a trust or a Lady Bird deed, the family usually needs a court order confirming its homestead status before the home can be sold. Planning for the home in advance can spare them that step.

Keeping the plan working

A plan to avoid probate only works if every asset is titled correctly and every beneficiary designation is current. A new bank account opened in your name alone, an outdated beneficiary form, or a trust that was never funded can send property back into probate. Reviewing the plan every three to five years, and after any major life change, helps keep it working as intended.

Attorney Season A. Chisholm reviews each asset with you, recommends the combination of tools that suits your family, and prepares the documents and deeds to meet Florida's requirements. The first step is a complimentary 15-minute call or in-person consultation.