Probate & Estate Administration

After death, there are generally two possibilities for how your assets pass to your beneficiaries – probate or trust administration.  

Probate

Probate administration is the court process through which estate assets are transferred after death. If probate avoidance estate planning has not been implemented prior to death, Florida law requires that a probate court proceeding be opened at death, in order to pass assets to beneficiaries.

During the probate proceeding, the decedent’s appointed Personal Representative manages assets, pays any debts, files required tax returns and various court documents, and distributes the estate assets. This process requires court supervision and approval at each step along the way.

Because probate can be a lengthy, costly and public process, many choose to avoid it. There are a number of legal strategies that we employ which allows a person to pass property to a beneficiary after death, while avoiding probate.

  • Joint Tenancy & Tenancy by the Entirety. Owning assets as a joint owner or “joint tenant with rights of survivorship” allows property to pass to surviving joint owners without probate. However, this strategy subjects the jointly-held assets to claims (such as lawsuits) against a co-owner, and it makes the assets available to the co-owner’s creditors.
  • Beneficiary Designations. Florida allows Transfer on Death (TOD) or Payable on Death (POD) beneficiary designations to be added to bank accounts and brokerage accounts. Beneficiary designations may be preferable to joint tenancy, in that they allow transfers of property only upon death, without transferring current ownership. One of the drawbacks of this strategy, however, is that it can be difficult to obtain an equitable distribution of property among your beneficiaries. Additionally, TOD or POD assets will be distributed upon your death to the listed beneficiaries, even if the account owner’s last will and testament dictates otherwise.
  • Revocable Living Trust. A Revocable Living Trust is a legal document establishing a separate entity (the trust) to hold legal title to assets while the grantor (trust-maker) is still alive. The grantor names trustees to manage the trust assets according to the trust terms. Typically, the grantor will manage the trust assets for his or her own benefit while alive and healthy. Upon disability or death, the trust terms appoint a successor trustee who then continues to manage or distribute the trust assets. A properly drafted trust can accomplish many goals, including guardianship or probate avoidance, as well as marital dissolution and creditor protection.

Trust Administration

A properly drafted trust can accomplish the goal of probate avoidance.  The trust must, however, be administered after death. This means that beneficiaries must be contacted, assets managed, potential creditors notified, debts, taxes and final expenses paid, and, ultimately, any remaining income and assets must be distributed in compliance with the trust terms. Successor trustees often lack the time, resources or knowledge necessary to personally administer the trust. For this reason, many choose to call upon legal, accounting and investment professionals for trust administration assistance. Our office can assist your successor trustee(s) in managing the complexities of administering your trust.

Perlin Estate Planning & Probate assists clients with Estate Planning, Probate, Trust Administration, Elder Law, Long-Term Care Planning, Medicaid Planning, Veterans Benefits, Charitable Planning, Special Needs Planning, Estate Tax Planning, Business Succession Planning and Asset Protection in Miami, Coral Gables, Pinecrest, Miami Beach and the surrounding areas.

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