Exploring the Relationship between Wills and the Florida Probate Process

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With less than half of all Americans, according to research, having an estate plan in place today, have you taken the time to create one? We are very aware that estate planning takes careful time and consideration as you decide what you would want to happen at both a time when you are no longer alive and a time when you no longer have the capacity to care or make decisions for yourself. However, when you decide to not only protect yourself but those you love most, you are giving yourself and your family the peace of mind that can only come from a comprehensive Florida estate plan. 


We do find that many of our clients want their estate plan, especially their will, to help their estate to avoid probate. They believe that if they have a will, their Florida estate will then avoid probate. In fact, we find that the main goals of those who are creating a Florida estate plan centers on the fact that they want to ensure their families will not face:


  • Family conflict,
  • Personal affairs made public, 
  • More costs and expenses,
  • Court involvement, and 
  • Questions during the grieving process.


Unfortunately, what many of the clients who come to us to help them do not realize is that if these are among their goals for their estate, then a last will and testament will not be enough to protect their Florida estate from probate.


We understand this seems illogical because shouldn’t a last will and testament be able to avoid any future involvement from the courts, creditors, or others at the time of their death? It should but, regrettably, the probate process is all but assured when you only have a will as a part of your Florida estate plan.

To explain the reason why, you need to know that a last will and testament is a set of instructions only. It instructs who should inherit from you, how they should inherit from you, and the manner of their inheritance. Your last will and testament will also nominate the person, or persons, you want to be in charge of the process. 


It does not, however, take your estate assets out of your name. This means that legal ownership will be determined, with the guidance of your will, through the probate process. The probate process is often costly, time intensive, and public. Your last will and testament will not be able to avoid this process at the time of your death.


You still want to avoid probate? How can you plan ahead to avoid the probate process? The Florida estate planning answer is to create a trust agreement. Through your trust agreement you can “fund” or retitle your assets into the name of this estate planning tool to be held and administered in the way you see fit. This ensures that at the time of your incapacity or death these assets can be held under the management of the trustee you choose and avoid court involvement of any kind. There are many different kinds of trust agreements that can be created to meet your needs and reach your goals for your legacy. While there is an administration at the time of your death or incapacity, it is not the same as the court process you would encounter without this essential estate planning tool in place. 

We can help use this Florida estate planning tool to reach your goals and understand how important this is to your goals. We know this article raises more questions that it answers. We provide expert service to guide you through the medical, financial, and emotional stress of caring for an aging parent or spouse. Our law firm was born out of the personal journey of Attorney H. Frances Reaves as she cared for her own parents.  This experience taught her that most seniors in the United States are ignored by society, the government, business and, sadly, their children.  Most children of elderly parents don’t know how many benefits and resources are available for their parents or ailing family members. Let us help you. We encourage you to contact us and schedule a meeting.