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How to Avoid the Probate Process

Senior couple meeting with an estate planning lawyer

Avoiding the probate process may be desirable both for the person who has passed away and for the person’s heirs. It does not have to be a difficult process, as it is easy to ensure your assets are going straight to your heirs while avoiding probate. Here are several ways you can avoid the probate process.

What is the Probate Process?

First, it is important to know what the probate process is. After someone passes away, their estate enters probate. Probate is the court-supervised process in which the deceased’s assets are distributed to bill collectors, taxes, and inheritors. While it is court-supervised, the court usually will not get too involved, unless there is a dispute among family over the estate, or creditors have issues. The probate process in Florida is somewhat easier than other states, as Florida is one of 16 states who have adopted the Uniform Probate Code (UPC). The UPC is a way to streamline the process, make it simpler, and give executors more flexibility. 

In a UPC state like Florida, there are three types of probate: Informal, unsupervised formal, and supervised formal. 

Living Trust

One way to avoid probate is by using a living trust. A trust can be changed and managed. You can add and remove assets, and have control of the trust up until your death. Should you be incapacitated before death, a designated and reliable co-trustee will operate the trust. There are downsides, however, despite the flexibility. In a living trust, your assets are taxable, and they can be seized by creditors. Because your property is essentially owned by your trustee after your death, your assets avoid probate and go straight to your heirs. 

Pay-on-Death Accounts and Registrations

You can also use pay-on-death accounts and registrations to avoid probate. Essentially, these designations change your bank and retirement accounts to pay-on-death accounts by naming a beneficiary. When you pass away, the money will go straight to the beneficiary, and thereby avoid the probate process. 

Life Estate

You can also use a life estate to avoid probate, especially when it comes to a home or property. A life estate is a real estate transfer where a person sells or gives away their home but retains the right to live in it until they die, or their spouse passes away. This is done to protect the asset from things like nursing homes and Medicaid, and the probate process. A life estate is a form of joint ownership of a property, between two or more people, and at different times. Essentially, the owner of the property has control of it until their death, at which time the co-owner takes control of the property.

A life estate occurs when a person has a legal right to use the property during life but does not own the property outright. That person is called a life tenant. After the death of the life tenant, the property passes to the named beneficiaries, called remaindermen.

Gifting Property or Assets

Giving away property or assets as gifts is also a way to avoid probate. If you do not own the property or assets at the time of your death, there is nothing available to go through probate. 

For smaller estates, there may also be a workaround for the probate process, which allows the family to settle the estate without going to court. 

Contact The Mattar Firm

If you’ve been thinking about the probate process, and how to avoid it when you pass away for your family and loved ones, it may be worth speaking with an experienced estate planning attorney at The Mattar Firm, who will be able to go over the best options for you and help make the right choice for you and your family. These are important decisions to make, and the right advice can make all the difference. Call us today at 844-444-4444 or 239-222-2222.


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