For those who are concerned about what they may leave behind for loved ones after they are gone, the topic of probate can be both uncomfortable and confusing. The greater the wealth, the greater the potential for missteps and problems. However, for the vast majority of Floridians, probate need not be an emotionally draining or troubling subject. In fact, many people do not even need probate.
At The Law Offices of Matthew J. Jowanna, P.A., our team is always looking for ways to streamline and simplify the estate planning process for our clients. This includes figuring out options that often do not even include probate. Nevertheless, probate is not as scary as many make it seem. In fact, there are a lot of unfortunate myths circulating. Perhaps three of the biggest can easily be busted.
Myth #1 – Having a will keeps things out of probate
It is difficult to say where this myth comes from, but a lot of people believe that the primary reason for having a will is to avoid probate. In actuality, having a will has little to do with whether an estate must proceed to probate court. Whether you must probate your estate or not depends on the amount and type of assets you possess upon death. Having a will simply tells the probate court what you want done with those assets. Without a will, Florida law has a statute that determines how those assets are distributed, and this may not exactly be what you want. So, in short, someone with a will often still needs probate, and people without wills may or may not.
Myth #2 – Everyone has to go to probate court
Under the Florida Probate Code, if someone dies with less than $10,000 in assets, a Small Estate Affidavit often suffices. This is a detailed, signed affidavit that outlines the remaining assets, names of all heirs and states facts like the decedent’s date of passing. These affidavits are usually accepted by all banks and other businesses. This document allows a surviving heir to collect and distribute assets for the deceased without going to court. If the person left a will, then the heir will simply follow the instructions. There are, of course, potential pitfalls with this process if an heir is unscrupulous and chooses to defraud other heirs, as there is no court oversight. There are certain assets that cannot be distributed by affidavit, such as real estate. If a person dies with less than $75,000 in assets, a simplified process known as Summary Administration may be possible.
Myth #3 – You should always try to avoid probate
A lot of people fall into the trap of fearing probate. In truth, probate is a straightforward process. With the skilled guidance of a Florida probate lawyer, it need not be stressful. Plus, there are many simple ways to reduce or entirely avoid the process if you plan ahead. In fact, many assets are not even part of a probate estate. These include:
- Assets held in trusts
- Anything with a beneficiary designation (life insurance, retirement accounts, etc.)
- Assets held in joint tenancy (i.e. joint bank accounts or real estate)
- Accounts that are payable on death
With so much misinformation out there, always think twice before taking actions relating to your estate plan. Having an experienced estate planning and probate attorney on your side can ease a lot of the anxiety that comes along with administering an estate. So, if you have lost a loved one and believe you may need to open a probate matter, give our firm a call first to get real answers.