The passing of a family member is one of the most difficult times in anyone’s life. The grieving process can become considerably more trying when the distribution of the deceased’s assets is unclear or in dispute. This is why it is essential that you have an estate plan in place that provides a clear procedure for the distribution of your assets. It is also important to have a general understanding of the probate process that may be necessary to distribute your estate and the methods for avoiding unnecessary costs.
Whether or not you have a Will, there are a few ways to ensure that certain assets will be automatically distributed. For one, any real or personal property that is jointly held by yourself and another person with a right of survivorship or by the entireties goes straight to that surviving person. Examples include a homestead owned by a married couple, a joint checking account, and a vehicle titled as “John Doe or Jane Doe”. Next, any asset that has a designated beneficiary upon the holder’s passing - which includes life insurance proceeds and payable-on-death accounts - automatically go to that named beneficiary. Similarly, any asset placed in a living trust usually goes straight to the designated beneficiary upon your passing. The proper titling of assets can go a long way toward avoiding the emotional toll and considerable effort required to distribute assets that would otherwise be in dispute.
Having a well-drafted Will may be sufficient to avoid the probate process, however it is a common misconception that having a Will automatically eliminates the need for probate. For that reason, it is always recommended that when creating your Will you use an attorney whom you trust and that you provide full disclosure of your assets and desires, as this will allow your attorney to draft your Will with the maximum protections in place. Also, it should be noted that in Florida it is required that your Will be filed with the Clerk of Court within ten days of your passing in all situations.
The general idea behind probate is that your Personal Representative identifies the assets in your estate, uses these assets to pay off any creditor claims or taxes that are owed by the estate, and then distributes the remaining assets according to the terms of your Will or the Florida Statutes should you not have a Will. The probate process can be very complicated and is highly specific to each particular estate and the family members involved.
Probate can be an extremely emotional and trying time for your family members who are in the process of grieving their recent loss. One of the greatest gifts you can give your family is to minimize the financial impact of your passing by jointly titling your assets and designating beneficiaries wherever possible, and working closely and openly with a trusted attorney in drafting your Will. Written by: Attorney Dylan Hall