Probate in Florida: Is it Really That Bad?

Most Floridians have attended, at some point during their Florida residency, one or more seminars given by attorneys, discussing the need to avoid probate in Florida and instead create a revocable living trust.  For the most part, the attorneys are correct.  In general, it is highly recommended that if you are a Florida resident, that you create a revocable living trust in order to avoid probate.  

One of the problems with the aforementioned advice is that while clients create these trusts, they often fail to transfer all of their assets into the trust.  Sometimes, they create the trust and never fund it at all, thus necessitating probate.  It is important, therefore, when establishing a revocable living trust, to fund the trust with one’s assets.  Your assets must be owned by the trust, in order for them to pass according to the terms of the trust.

Often overlooked, as well, is when a resident of New York owns real property in Florida, it is almost essential that the New Yorker create a revocable living trust and transfer the Florida property into the trust, in order to avoid a second probate.

If one finds oneself in the situation of having to probate a will in the State of Florida, it is not the end of the world.  While it is a long and somewhat complex process, the obstacles are not insurmountable and there are ways to make the process easier.  Perhaps the most important factor is hiring an attorney who is not only competent and experienced with Florida probate, but who will  also get the job done expeditiously and not procrastinate.   That will go a long way to ensuring that the probate process is not an arduous ordeal.  One must also take special care in hiring an attorney who will charge for services based on the time spent, rather than as a percentage of the estate.  Many attorneys in Florida charge by a percentage of the assets, and not by the hour.

 In the end, avoiding probate in Florida should be one’s first objective; however, if probate must be undertaken, there are ways to minimize the process becoming complicated, long and expensive.