Posts Tagged ‘Probate’

One of the most important personal tasks you will undertake in your lifetime is the planning for the protection of your loved ones. Failing to plan for their protection can leave them overwhelmed when they find themselves dealing with your loss. Not having a comprehensive estate plan in place could result in unbearable stress and financial hardship for the people that you love the most. It would be completely irresponsible to not establish an estate plan, especially since one can be created for you inexpensively and with very minimal time and effort.

An estate plan should permit you to control your assets while you are alive and healthy but also allow you to plan for the security of your loved ones in the event that you become disabled or die. Should you die, your estate plan should carry out your wishes and give what you want, to whom you want, when you want, and in the manner of your choosing. You can control your assets long after you are gone.

Uninformed people may tell you that probate is not all that bad. Those people are probably probate attorneys. The bottom line truth is that if you have in excess of seventy five thousand dollars in assets, you should avoid probate at all costs. Probate is the Court-supervised process of gathering up the assets of a deceased person (called the “decedent”), paying the decedent’s final bills, and then distributing the decedent’s remaining assets in accordance with the decedent’s will, if any, otherwise in accordance with Florida Law. Probate is necessary when the decedent has left assets, including houses, cars, bank accounts, and even life insurance policies or retirement funds titled only in his or her name. It is the erroneous belief that having a will in place will avoid probate. Probate will be required whether or not the decedent has left a will since Florida law provides a “will” for those who chose not to make one through the intestacy statutes.

The intestacy statutes states that a person who dies without a will shall have his, or her assets distributed as the state of Florida has previously determined. People who die leaving only a spouse, will have all of that person’s assets distributed to the spouse after they have been probated. For people who die, leaving behind both a spouse and children, the first $60K goes to the spouse leaving the rest of the assets to be split equally between the spouse and the children. Although most people would prefer to not give half of their assets to a minor child without some sort of protection, that is how the Florida intestacy statutes are written. While having a will avoids intestacy, it does not avoid the hazards of the probate process. The only way to avoid probate is with a trust-based estate plan..

There are a number of negatives associated with probate. First and foremost, it’s expensive, running between four and seven percent of the estate’s value. In additon, the lawyers, the Court, and the creditors will all be paid before your family or beneficiaries see their first dime. Another problem with probate is the time involved. Even the probate of a simple estate can take between six and eighteen months, with some estates taking in excess of three years to complete. During this period, your loved-ones willnot have access to your assets and have no ability to sell or manage them even if they depreciate in value during that time. Another significant drawback of the probate process is the possible embarrassment of your personal information becoming public knowledge.

Probate is public record. Your will is filed with the clerk of courts and anyone with a computer can download it and read it. Any fighting over the execution of your will, any family arguments about the will are also public record. Trusts, on the other hand, are completely private and shielded from public view.

Another very important drawback of the probate process is that your beneficiaries are not afforded any protection once they inherit your assets. With a trust-based estate plan, you will be able to protect your beneficiaries from anyone attempting to take the assets from them through manipulation, litigation, or divorce. Without a trust, your assets could be taken from your family and enjoyed by a person that you have never even met.

Probate is a very real concern and should be avoided at all costs. Luckily, it is easily avoided by simply calling your estate planning attorney and implementing a trust-based estate plan. For more information on how to protect your family and your assets, please contact the Fort Lauderdale law firm of Wild Felice & Partners, P.A. at 954-944-2855 or via email at info@wfplaw.com.

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