Post-Death Administration

Probate in Northeast Florida

Legacy Planning Law Group knows that the best way to help our clients is to understand their post-death administration needs and help them find the right solution and path forward. If you’re interested in learning more about our probate services as part of our unique Estate Settlement Program, please book your free 15-minute phone call with us today!

Understanding Probate

Probate is part of a larger process called estate administration which handles the transfer of assets after death. Whether the decedent died with or without a will, their estate will have to be administered. Certain types of assets must be overseen by a judge to be transferred at death. In those situations, the estate will have to be probated. Probate is a court process where a court order is needed to pass title to assets. Certain things happen in a probate, the first of which is the appointment of a personal representative (also known as an executor). Once appointed, the personal representative has numerous responsibilities, including marshaling assets, giving notice to beneficiaries, giving notice to creditors, paying debts, preparing asset inventories, filing required tax returns, and finally distributing estate assets and closing out the estate. The probate court is involved every step of the way.

While some types of estate assets must go through probate, other types of assets do not. In that situation, they will still need to be administered. In other words, there will still need to be an estate administration to make sure the assets get transferred in the way the decedent wanted. The estate administrator will have to do many of the same things that are required in a probate proceeding, such as organizing the assets, notifying the beneficiaries, giving creditors notice and a chance to file a claim, paying the unpaid debts of the decedent, preparing an inventory of the assets, filing tax returns, and finally distributing those assets to the intended beneficiaries. Learn more about the probate process in our articles What Is Probate and How to Prepare for It? and How Does a Probate Proceeding Work?

PROBATE AVOIDANCE

Because probate can be a lengthy, costly and public process, many people choose to avoid it. There are a number of legal strategies that will allow you to pass property to another person after death, without going through probate.

  • Joint Tenancy & Tenancy by the Entirety — adding another person to your assets as a joint owner can allow your property to pass to them upon your death without going through probate. With somebody other than your spouse, the asset would have to be owned in “joint tenancy with rights of survivorship.” There are pitfalls to this strategy, however, which include subjecting such assets to any claims (such as lawsuits) against the co-owner and making them available to the co-owner’s creditors — all while you are still alive and planning on using the assets yourself. Joint ownership between spouses is called tenancy by the entirety.
  • Beneficiary Designations — Florida allows transfer on death (TOD) and pay on death (POD) beneficiary designations to be added to investment accounts and bank accounts. Beneficiary designations like these are preferable to joint tenancy in that they allow you to transfer property only upon your death without giving away current ownership. One of the drawbacks, however, is that it can be difficult to obtain an equitable distribution of property among your heirs by utilizing beneficiary designations. Additionally, understand that if you have beneficiaries listed on your assets, those assets will be distributed upon your death to the listed beneficiaries, even if your last will and testament states otherwise. Using a revocable living trust often is the better approach. In fact, you can designate a revocable living trust as a TOD and POD beneficiary, in effect getting the best of both worlds.
  • Revocable Living Trust – a Revocable Living Trust is often the preferred method for avoiding probate. It is a legal document that allows you to establish a separate entity (the trust) to “hold” legal title to your assets while you are alive, and to name trustees to manage those assets according to the trust terms. Typically, you serve as the trustee while you are alive, managing your assets for your own benefit. Upon your disability or death, the trust terms appoint your successor trustee who then continues to manage — or distribute — the assets held in trust. A properly drafted trust can accomplish many goals, including avoiding guardianship while you are alive if you become incapacitated and avoiding probate for your loved ones after you pass away. A Revocable Living Trust also is a way to protect your children’s inheritance from their own mismanagement as well as from divorce and lawsuits.

Some Additional Resources

The following resources are provided by The Florida Bar

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