Florida Probate: Something to Avoid


While the probate process is usually quite simple and straightforward in New York, that is not the case in Florida.  What is probate and why does probate become necessary?  When a person passes away, there needs to be a legal mechanism for transferring assets from the deceased person to the deceased person’s heirs.  Usually, that mechanism is through the use of a last will and testament, which then gets filed with the Court and the Court looks to see if the will was properly prepared and executed.  Of course, probate can often be avoided by transferring one’s assets to a revocable living trust, and/or by having beneficiaries on one’s accounts.  There are many reasons why the trust and beneficiary designations may not be the best choice.

 In Florida, it is now required that almost all probate documents be e-filed with the Courts.  There is not much direct interaction with Court personnel, if any, which is a negative.  Moreover, since some documents, such as the deceased’s original last will and testament, must be filed in person or via the mail, complications in this process frequently arise.  In addition, while in New York the probate is over once the Executor is appointed and the will is accepted for probate, in Florida, there are a host of activities which must occur after the Executor is appointed.  For example, a notice to creditors must be published in the newspapers, an accounting of assets must be filed, and the Executor must go through the process of being discharged as the Executor after all work is done.  Put simply, this makes the probate process lengthy and on-going.

I often recommend to my Florida clients, or to my New York clients who own real property in the State of Florida, that they put beneficiaries on their bank accounts and investments and/or put these assets, along with their real property, into a revocable trust.  Properly drawn, the revocable trust can accomplish one’s objectives and save the time, trouble and expense of a Florida probate.  There are instances where this plan may not be the best way to accomplish one’s objectives; therefore, it is imperative that one seek advice from an experienced and competent attorney, licensed to practice in Florida, before undertaking such steps.  In the event one’s will does need to be probated, retaining an experienced attorney who is also someone who will undertake the probate process in an expeditious fashion will prove invaluable.

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