What happens if you do not have a Will or a Revocable Trust?

If you do not have a Will or a Revocable Trust and have not used other estate planning techniques, upon death your assets will pass according to the laws of the State which has jurisdiction over your assets. The “State plan,” also referred to as dying intestate, may not provide for those you desire to obtain your assets.

What is probate?

Simply stated, probate is the legal process of establishing the validity of a Last Will and Testament, and settling an estate. Probate requires the appointment of a personal representative, whose duties include marshalling one’s assets, paying one’s legally enforceable debts and distributing the remaining assets in accordance with a decedent’s wishes. The personal representative acts under the direction and supervision of a probate court.

Why do people wish to avoid probate?

The probate process may take up to one year to complete, although in certain instances, the process can require more than two years to complete. Unfortunately, this process may result in significant legal expense and related costs as well as a delay in distribution of one’s assets to those who may have an immediate need for funds. Moreover, an individual, acting as personal representative, will be required to perform many functions during the probate administration, which are not only time consuming, but will likely also interfere with the mourning process.

How long is the probate process?

The Florida Probate Rules require completion of a probate within 12 months of initiation. However, uncomplicated probates with few debts and no disputes among beneficiaries can be concluded in as little as six months. Complicated probates, including those with creditor claims, tax concerns or family disputes, can last for years.

What is the difference between Formal Administration and Summary Administration?

When most people think of “probate,” they are thinking of a process called Formal Administration. This process is required for those estates exceeding $75,000 in value or in instances for which a decedent’s creditors have not been adequately provided. In a Formal Administration, a personal representative is appointed by a Court to collect a decedent’s assets, address any outstanding liabilities and report all matters to a Court prior to distributing any remaining assets to the estate’s beneficiaries.

The process of Summary Administration is available when an estate is less than $75,000 (assuming all creditors have been properly addressed) or when death occurred more than two years prior to initiation. Rather than appointing a personal representative and requiring the steps of a Formal Administration, a Court in a Summary Administration will direct the immediate disposition of a decedent’s assets to the estate’s beneficiaries.

How does a Revocable Trust avoid probate?

Assets held in a Revocable Trust are not subject to probate. A few of the advantages of avoiding probate are:

  • Expedited Distribution. A Revocable Trust allows assets to be distributed to your beneficiaries as quickly as the Agreement instructs, without the delays of probate.
  • Expense Reduction. The expenses of probate, including legal fees and court costs, are avoided for all assets held in a Revocable Trust at the time of death.
  • Privacy and Confidentiality. When a Will is admitted into probate, all of its provisions become a matter of public record. A Revocable Trust is a private arrangement, and its terms are not made public at death. Your assets and intentions are known only to your trustee and beneficiaries.