Focused on Your Goals & Outcomes
happy family at a barbeque

Probate and Non-Probate Assets: How Planning Now Can Avoid Costs Later

Probate — it’s the word no one wants to hear when settling a loved one’s estate or planning their own. Most people know only enough about probate court to know they want to avoid it. 

Ignoring the reality of probate, though, will likely lead to a long and costly legal process for your loved ones before they can inherit your property after your death. Instead, take the time to understand probate and learn about how you can set up your estate to minimize mistakes and frustrations or even avoid the probate process altogether. 

What Is Probate?

Probate is the legal process of authenticating someone’s will and settling their estate after they die. (The process of authenticating a will is called “proving” the will, and the term “probate” comes from the Latin word for “prove.”) This process takes place in a special court called probate court.

The probate process includes the following steps:

  • Proving that the deceased person’s will is valid
  • Identifying and taking an inventory of all the deceased person’s property
  • Appraising the property
  • Paying any debts and taxes that exist against the property
  • Distributing the remaining property according to the will

Probate usually involves a significant amount of paperwork as well as court appearances by the deceased person’s personal representative (also called an “executor” or “administrator”) and their attorney. Some probate cases last for years while others take only a few months to resolve; in Florida, the average probate process last for six months.

When Is Probate Required?

Some assets can be transferred in Florida without going through probate; these assets are called non-probate assets. The most common types of non-probate assets are:

  • Assets held in a living trust
  • Assets for which the deceased person designated a beneficiary (like a retirement account or life insurance policy)
  • Property that is jointly owned by more than one person (for example, a marital home that is in both spouses’ names)

Probate assets, on the other hand, are those assets titled with the deceased person’s name only, like a car, real estate, investments, and so forth. In the case of these assets, only the probate court can take the deceased person’s name off the title and transfer them to the new owner. 

How to Avoid Probate

Unfortunately, simply having a valid will does not prevent your property from having to go through probate. But there are ways that you can set up your estate to avoid the probate process and its associated costs.

One of the best-known and most effective ways to avoid probate is with a living trust. When you put your property into a trust, you name someone else as the beneficiary while you remain the trustee. This gives you access to and control over your property for as long as you’re still alive while also ensuring the beneficiary will be able to have the property after you die. Upon your death, the person you named in the trust document as the next trustee will transfer ownership of the property to the beneficiary, with no probate proceedings required.

Trusts are one of the best ways to avoid probate, but they aren’t the only possibility. Effective estate planning can also help you bypass probate through other means, including:

  • Adding a POD (“payable on death”) designation to a bank account
  • Setting up joint tenancy for real estate
  • Establishing joint ownership of major assets

An experienced estate planning attorney should understand which of the solutions for avoiding probate will work best in your case, and they can help you evaluate your estate and apply estate planning principles to minimize the probate process or even avoid it altogether. 

When to Hire an Attorney for Estate Planning

Every person’s estate planning needs are unique, just like their estate. If you own very little property and your estate is a simple one, you may be able to plan your estate to minimize probate without any help (although working with a professional will certainly give you more peace of mind). If you own one or more businesses, hold multiple properties, have substantial assets, or have been married more than once, though, you should seek the counseling and advice of an experienced estate planning attorney if you want to avoid a long and costly probate process for your loved ones.

If you’re considering trying to plan your estate without any assistance from a lawyer, make sure you know what knowledge and expertise is required first. For example, ask yourself the following questions:

  • Do you know how to fill out beneficiary designation forms?
  • Do you understand the distinction between real property and personal property?
  • Do you know what an A-B trust is and how it works?
  • Do you understand the difference between per stirpes and per capita distribution of property at each generation?

If you answered “no” to any of the above questions — which are just a small sample from the body of knowledge that an estate planning professional needs to have — then it’s a good sign that you should consult an experienced attorney for help planning your estate to avoid probate. A single missing signature or wrong word choice can change the way a court interprets your will or trust, so don’t take chances with the legacy you’ve worked a lifetime to build. 

Contact the Devolder Law Firm for Estate Planning Services in New Tampa, Wesley Chapel, and the Tampa Area

If you feel unsure about your estate plan and what will happen to your assets after you pass, the experienced legal team at the Devolder Law Firm is here to help. We excel at listening to and working with our clients to create customized, efficient, and affordable estate planning solutions that give them confidence and peace of mind for the future. We also handle many of the other legal issues that suburban families face, so we’re ready to support you with advice and expertise whether you’re improving your homeselling or purchasing real estate, or dealing with a family law-related issue.

Ready to meet the Devolder Law Firm team and see what we can do for you? Call our offices at (813) 773-8233  or fill out our brief online contact form and we’ll get in touch promptly to schedule a free consultation.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.