Did you know I have personally administered (within and outside of Probate Court) over 600 estates in my 30+ years practicing law in Coral Gables and South Florida? Let me shed some light on the probate process...
Simply put, probate is a court process through which a decedent's assets are identified, any debts, taxes or expenses paid, and finally, the inheritance is either distributed outright to loved ones or is administered and distributed to them through a trust.
Identify, Gather & Manage
Since organization and record keeping are the dynamic duo when it comes to a successful probate, most probate problems can be mitigated, if not avoided completely, by minding the basics. Many families have found some helpful tools to simplify this task. For example, one available resource can be ordered online at www.myducks.com. Many people have found the "myducks" hard copy and digital organizational tools easy to use and comprehensive. Whatever tool one chooses to use, the only one that will work is the one you will use... and maintain!
Settle Financial Matters
Rarely does anyone leave this life without a few financial matters to resolve. Whether the roofer, the IRS or the funeral home, chances are good your estate will have some financial liabilities to pay on your behalf. Except for "known" creditors, all states provide for an outside time limit for unsecured creditors to make a claim against the estate. This provides protection for estate beneficiaries after the probate is closed.
When using a will, there are three basic approaches to inheritance distributions at the close of the probate process.
- Outright: As soon as the probate steps are completed, the inheritance is distributed without any "strings" attached.
- Staggered: Outright distributions are made at certain beneficiary ages or triggering events (e.g., one-half at age 25 with the balance at age 30).
- Long-Term Discretionary: Distributions are made to or for the benefit of beneficiaries in the judgment of the trustee, offering the greatest protection from squandering, divorces, lawsuits or bankruptcies.
Probate is not the same in every state. Therefore, given the mobile nature of our society, you should have your estate plan reviewed and perhaps revised if you relocate. For instance, in some states the probate process is simple and streamlined; while in others it can be more complex and cumbersome. Since many people retire to Florida, this is especially important due to Florida's large senior population, and to the differences in Florida's probate and estate laws.
Significantly, too, some states provide minimum statutory fees to the attorney and estate fiduciary based on the value of the assets subject to probate. Other states require the attorney and estate fiduciary to track their actual time and the probate judge ultimately approves, disapproves or revises the fees based on whether they are reasonable.
Not surprisingly, in those states where probate is more complex, cumbersome and expensive, many estate planning attorneys advise clients to avoid probate altogether. Common probate avoidance approaches included funded revocable living trusts, transfer on death (TOD) designations and beneficiary designations for life insurance and retirement funds.
Give me a call (305-443-3104) to review your current Will or Trust documents; I can advise you regarding the benefits and detriments of probate planning or probate avoidance planning.
I'm an exceptionally experienced Florida Bar Board Certified Estate Planning Attorney, a Florida Certified Public Accountant (CPA) and a Florida Bar Board Certified Elder Law Attorney. Of course, if you would like more information about General Estate Planning in South Florida, I have a very informative website you are welcome to visit for more information.