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3 common questions about probate

Spend any amount of time researching estate planning, and you're bound to come across the term probate. It's an important consideration in preparing for the future and organizing your affairs. For many people, it's a key factor in strategizing an estate plan.

However, myths and misunderstandings abound when it comes to probate. Gaining a better understanding of the process will help you solidify your goals. You can start by getting answers to some of the most common questions people have about probate.

What exactly is probate?

Put simply, probate is the court process for handling an estate after the death of its owner. It involves:

  • Determining whether there was a will - and, if so, whether it's valid
  • Collecting and valuing estate assets
  • Identifying debts and paying creditors
  • Making distributions in accordance with the will (if there is one)
  • Determining how assets should be distributed if there isn't a will (or other valid estate planning document)

Read more about the probate process in Florida.

Why should I consider avoiding probate?

Every situation is different. For some people, going out of your way to avoid probate may not be a sensible priority. For others, however, it may be a central goal of your estate plan - and for good reason.

As a formal court procedure, probate takes time. Smaller estates may qualify for a faster, simplified process called "summary administration." However, in more complex estates or contested proceedings - for example, when disputes arise between heirs or when the validity of the will is in question - the resulting court battles can take years to fully resolve.

Probate is typically costly. Because of its complexity, in most cases, the process should only be navigated with the assistance of a lawyer - which means ongoing legal fees. Probate also involves expenses for numerous filings, detailed accountings and, potentially, the services of financial experts such as tax advisers and CPAs. These costs drain money out of your estate - and out of the pockets of those you intended to benefit from it.

Can I avoid probate by creating a will?

A will alone isn't sufficient to avoid probate. To steer clear of the process entirely, you'll need to consider alternative strategies for titling and holding assets. These include:

  • Establishing a gifting schedule to transfer assets during your lifetime
  • Creating a trust, which can be an incredibly powerful tool for safeguarding your assets, maintaining privacy and effectuating your wishes
  • Using beneficiary designations for assets such as life insurance and retirement accounts
  • Retitling real estate to establish joint ownership (with rights of survivorship), a life estate or other creative ownership arrangements
  • Implementing a business succession plan to protect business-related assets that might otherwise be treated as part of your personal estate
  • Opening payable-on-death accounts to transfer money directly to a beneficiary

As you can see, there are numerous options for avoiding probate - but also numerous pitfalls. Working closely with an attorney is the best way to make sure your wishes are accomplished.

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