End Of Life Planning
Business Succession Planning
Frequently Asked Questions
Probate & Trust Administration
Probate & Trust Administration
There are two types of estate administrations that happen after someone dies: Trust Administrations and Probate Administrations.
Both administrations have the primary purposes of:
- transferring or managing assets for the heirs or beneficiaries of the estate
- ascertaining all valid creditors of the estate
- paying any taxes, and
- distributing the estate accordingly.
Common Probate AssetsA court will transfer ownership of these
• Bank accounts owned by the decedent
• Real estate interests owned by the decedent
• Certain tangible property owned by the decedent
• Intangible assets (like stocks) owned by the decedent
Common Non-Probate AssetsThese automatically pass to your heirs
• Jointly owned assets that automatically transfer to the surviving joint owner (like real estate or bank accounts)
• Assets owned by a trust
• IRAs and other retirement accounts with a beneficiary designation
• Life insurance with a beneficiary designation
• Exempt Homestead real property
What is Probate?
Probate is primarily about transferring legal ownership of your probate assets to the persons that will inherit them.
Not all assets in an estate are probate assets. Generally speaking, probate assets are those that the decedent (the person that has died) owned only in his or her name.
Probate is a court process and thus public record. This means that many details of the probate estate are open to prying eyes and is one of the major reasons many people prefer a trust-based estate and other probate avoidance estate planning tools.
Under Florida law, an attorney must represent the probate estate for a formal probate administration. Some very small estates do not require the hiring of a lawyer.
However, because probate is a court process and requires formal notices to heirs and creditors, families often decide to hire an attorney, even for these small probate estates.
Trust administrations are usually a private process. There are certain notices that need to be filed with the court, but normally the bulk of the trust administration is completed outside of the courts.
A trust avoids probate by:
- Transferring ownership of assets to the trust during life
- Assets automatically funding into the trust at death through beneficiary designation
Remember, probate is primarily about transferring legal ownership. Because the trust’s existence continues after the death of the decedent, there is no need to probate assets owned by the trust. [this could me made into a quote by me]
A trustee does not have to hire an attorney for the trust administration. But, because the requirements of a trust administration are often not common knowledge, usually the trustee will hire an attorney to assist in the trust administration.
Some common benefits of a Trust Estate:
- May avoid probate all together
- Maintain control over assets for the benefit of minor children, future generations, family members with special needs, or other beneficiaries of the trust
- Protect your beneficiaries from creditors, predators, and themselves
- Tax planning (income and estate taxes)
All this being said, trust estates are not for everyone nor can they always avoid probate. It is best to consult a Florida-licensed attorney well-versed in estate planning to help you make the decision that is best for you and your circumstances.
Remember, probate is about transferring legal ownership of assets. If the asset’s ownership transfers automatically by virtue of how it is owned or by a beneficiary designation, then there is no need to probate that asset.Julia C. McKillop
What happens when you don't have a will?
Avoid probate. Preserve your estate.