Avoiding probate in Florida through proper estate planning

February 09, 2013 (Press-News.org) Avoiding probate in Florida through proper estate planning

Article provided by Shams Law Firm, P.A.
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No one ever wants to think about death, but it is important for individuals to plan for how their assets will be distributed at the time of their deaths. Without a proper estate plan, the issue of who will get a decedent's assets can be hotly contested. Even if the decedent left a will, his or her assets will usually need to go through probate before anyone can take ownership of them. Probate is the procedure through which the decedent's assets are valued, the decedent's bills and taxes are paid off and the assets are distributed to the decedent's heirs.

Reasons to avoid probate

Although individuals may be happy with what they get out of probate, there are certainly many disadvantages to the process. The severity of the consequences depends on the estate involved, but generally there are four reasons why an estate should try to avoid the probate process.

Firstly, the probate process can greatly delay access to the assets. Depending on the complexity of the estate, the probate process can take up to several months. During the entire probate process, the parties involved will be responsible for bills incurred on behalf of the decedent.

Secondly, the probate process interjects a third party into the already lengthy process -- namely, a judge. In some cases, the judge must approve certain actions, such as selling, repairing or even abandoning assets, and this can delay the passing of the remaining assets. Moreover, the judge's discretion can substantially interfere with the family's financial matters and can result in decisions that contradict the family's intent or best interests.

Thirdly, there are substantial costs associated with the probate process. Beneficiaries may wonder why they must pay to receive assets that have been rightfully been assigned to them. The fees associated with probate will obviously have a greater impact on parties without great financial resources and in cases in which the estate at hand lacks substantial assets.

Lastly, probate may lead to embarrassment or invasion of privacy. As probate is a court proceeding, all of the information pertaining to the decedent's personal assets, liabilities and even beneficiaries become a matter of public record. Consequently, any person can access the complete probate file at the courthouse.

Ways to eliminate the probate process

Given the negative features associated with probate, individuals should consider trying to avoid the process all together. Unfortunately, there are only a few ways to escape the procedure.

One way to avoid probate is for the decedent to jointly own a bank account or real estate deed with someone else. In a joint ownership with a right of survivorship, the other joint owner will have clear title to the account or deed after the decedent's death. However, there are several downsides to joint ownership, such as its effect in divorces or on creditors.

Another way to avoid probate is for the decedent to transfer all assets before death. Without assets, there will be no estate and therefore no probate. However, this is an unlikely solution to avoiding probate, as the decedent will likely need to use some of the assets prior to death.

A logical solution through estate planning

The most practical way to avoid probate is through estate planning. The overall purpose of estate planning is to arrange for the disposal of an estate after the decedent's death. Estate planning covers a wide area of needs, such as will drafting, creation of trusts and even beneficiary designations to assets such as life insurance policies and IRAs.

An experienced estate administration attorney is an invaluable asset throughout the estate planning process. These professionals will present clients with alternative ways to organize their assets to ensure that the beneficiaries will realize the optimal benefit from their inheritance.