Probate is the legal process that kicks in when someone passes away owning assets in their name alone. It involves the court overseeing the distribution of those assets and payment of debts.
But here's the thing—probate can be time-consuming, expensive, and public. In Florida, attorney’s fees and court costs can easily run several thousand dollars, even for simple estates. According to Florida Statutes § 733.6171, attorney fees are often based on the value of the estate. And the process itself can take anywhere from six months to a year or more.
Avoiding probate not only reduces costs, but maintains privacy and streamlines the transfer of property to your loved ones.
Fortunately, Florida law offers several low-cost ways to avoid probate:
Ladybird Deed (Enhanced Life Estate Deed)
A 'ladybird deed' is a special type of deed that lets you keep full control of your property during your lifetime, while naming someone to inherit it when you die. Since the property passes directly to the beneficiary, it skips probate entirely. Also, you reserve the right in the ladybird deed to sell, refinance, or change the beneficiary any time you want.
Life Insurance
Life insurance policies with named beneficiaries are another easy way to avoid probate. When the insured person passes away, the insurance company pays the proceeds directly to the beneficiaries—no court involvement required. Just make sure your estate isn’t listed as the beneficiary, or else the policy will go through probate.
Pay-on-Death (POD) Accounts / Totten Trusts
Bank and investment accounts can be set up with a pay-on-death (POD) designation. This means the account will transfer directly to the named beneficiary upon your death, bypassing probate. These are sometimes referred to as 'Totten trusts,' where the bank acts as a sort of trustee to pass your money to the right person when the time comes. POD designated bank accounts are authorized by Florida Statute § 655.82.
Joint Ownership with Right of Survivorship
Adding a co-owner to your property with rights of survivorship is another way to ensure it passes outside of probate. If two or more people hold title as 'joint tenants with right of survivorship,' the surviving owner automatically inherits the deceased owner’s share. In Florida, married couples who own property together are typically considered 'tenants by the entireties,' which includes survivorship rights.
Revocable Living Trust
For more complex estates—or for those who want maximum flexibility—a revocable living trust is often the best way to avoid probate. You transfer your assets into the trust while you’re alive, and name a successor trustee to manage and distribute them after your death. Because the trust—not you—owns the assets, there’s no property that needs to pass through probate upon your death. This method also provides privacy and a way to manage assets if you become incapacitated.
Summary
In summary, Florida law provides several cost-effective ways to avoid probate of real property as well as financial assets. If you would like to explore ways of avoiding a Florida probate, give us a call at Clarke Law at (305)467-5560. We offer a free 10-minute consultation to help you get started.