Do Estates Have to Go Through Probate in Florida?
Can Probate Be Avoided in Florida?
Do all estates have to go through probate in Florida? Not all estates have to go through probate in Florida. Whether or not an estate can avoid probate depends on the types of property in the estate. Certain types of property avoid probate and pass directly to the beneficiary. Probate can be avoided if the entire estate is composed of non-probate assets.
What are Probate Assets in Naples?
A probate asset is an asset that is usually just held in an individual’s name or assets that do not have beneficiary designation designating to whom the asset should go. In Naples, most assets must go through probate. For example, if you pass away with a car owned solely in your name, it is a probate asset. Likewise, if you own a retirement account with no beneficiary listed or a beneficiary that has passed away, this is also a probate asset. With careful consultation with a good estate planning attorney, you can figure out ways to have assets avoid probate like placing them in a trust.
Probate assets are distributed according to the decedent’s will. If there is no will, they are distributed according to Florida’s intestate laws.
What are Non-Probate Assets in Naples?
There are three main types of non-probate assets to be aware of in Naples.
1. Assets held as joint tenants with rights of survivorship. When an asset is held in joint tenancy, the surviving owner automatically becomes 100% owner of the property. Examples of jointly owned property include a home owned by a couple or a bank account shared by two individuals. Importantly, being an authorized user on an account does not make you a joint owner.
2. Assets with beneficiary designations. Examples of assets with beneficiary designation include insurance policies, annuities, 401(k) plans, and transfers on death accounts. It is important to ensure that your beneficiary designations are up-to-date and that you have named backup beneficiaries whenever possible.
3. Trust Assets. Trust assets flow directly to the named beneficiaries according to the terms of the trust.
Benefits of Avoiding Probate in Florida
Below are some of the benefits of avoiding probate in Naples.
• Faster. Probate can be a lengthy process. Multiple tasks must be completed, creditors must be given time to bring claims against the estate, and interested parties have the opportunity to contest the will or bring other challenges. The time it takes to complete the process varies based on various factors, but a Naples estate typically takes 6-12 months to be finalized. It takes a minimum of three months because that is how long creditors have to bring their claims. If the estate is large or complex, probate can take years to conclude.
Non-probate assets transfer directly to the beneficiary without court oversight. This is especially important if your heirs will be relying on the inheritance and need quick access to the funds for daily living.
• Less Expensive. Probate includes various fees, such as court costs, filing fees, attorney’s fees, appraisal fees, accounting fees, and storage fees. Depending on the estate, these costs can run thousands of dollars. The fees are taken out of the estate before the property is distributed to the beneficiaries.
What is Disposition Without Administration in Naples?
Although the only way to completely avoid probate in Florida is to have non-probate assets, there is a type of probate called “Disposition Without Administration.” This type of probate allows you to skip the probate hearing process. The only requirement is for the beneficiary to file a Disposition of Personal Property Without Administration form to recover any assets left by the decedent. The process only takes approximately one month to complete.
Only certain small estates qualify for Disposition Without Administration in Naples. First, the estate can only be composed of personal property (this means the estate cannot include a home or other real estate). Secondly, all assets must be exempt from creditor claims under Florida law. Exempt property includes up to $20,000 in household furniture, furnishing, appliances, and two motor vehicles. Non-exempt property is only allowed to the extent that its value does not exceed the funeral costs and the reasonable and necessary medical expenses of the decedents from the last sixty days of their final illness.
Call a Qualified Naples Estate Planning Lawyer
If you have questions about avoiding probate, you should contact James R. Nici. James Nici is an experienced Naples estate planning attorney with over 25 years of experience. He is well versed in these issues and can create an estate plan that fits your needs. Contact our office today at (239) 449-6150 or use our web form to set up a free consultation.