If you die without a will, your assets will need to go through the probate process before they can be distributed. Assets go through probate to pass ownership of your assets to your beneficiaries.
If you have a will, it must be admitted to probate in the court and the judge presiding over your case will follow your instructions as best they can. This means that your personal representative must know where your will is located so they can file it with the probate court.
Without a will, your beneficiaries are entirely determined by the state. In Florida, this usually means your spouse, descendants, parents, and siblings may receive some or all of your estate. Exactly who receives what depends on your familial situation.
Does Everything Go Through Probate?
Not all of your assets have to go through the probate court. Assets that must go through probate are those (1) that are owned entirely by you at your death and (2) that were owned by you and another individual (or individuals) and did not have a provision for automatic succession of ownership at death.
Assets with a designated beneficiary do not often have to go through probate court. For example, if you have a retirement account with a named beneficiary other than yourself, that will not have to go through probate. Similarly, if you have properly named a beneficiary on a life insurance policy, that may not be a probatable asset. This means the beneficiaries whom you have chosen to receive those assets should receive them without involvement from the probate court.
Importantly, property that is held in a living trust does not need to go through probate. Therefore, we sometimes recommend clients set up a living trust as part of their estate plan. Having a living trust can help your heirs avoid the probate process.
Why Do I Want to Avoid Probate?
As indicated above, probate can be avoided through proper planning. While there are some assets that avoid probate if titled property, additional assets can be protected through a living trust.
Probate can be an expensive endeavor, as your personal representative will likely need to hire an attorney to assist. In Florida, an attorney must be hired for all formal probate administration proceedings.
Probate can also take a long time. A “simple” probate estate will usually take at least five or six months to complete. A more complicated probate can take a year or longer, depending on the situation.
While a living trust does not make sense for everyone, you should contact a local attorney today to discuss your options. The attorney can explain whether a living trust is recommended in your situation or not.