Florida’s Non-Probate Assets: What Passes Outside of Court Part II

In part one of this series, we began the discussion on how non-probate assets directly transition to beneficiaries, thereby bypassing probate court. But in order to successfully keep assets from entering into probate as part of the probate estate, essential legal requirements must be met. This article will further detail these necessary legal requirements, and discuss some strategies that you can implement into your own estate plan to ease the probate process of your own estate and potentially keep certain assets from going into probate.

Legal Requirements for Non-Probate Assets

If you want something to qualify as a non-probate asset that transfers directly to a beneficiary without the hassles of probate, here are some requirements that you need to know:

Declaration of Beneficiaries

If you want assets to be excluded from the probate process you have to ensure that you clearly declare who the beneficiary is meant to be. For assets like life insurance policies or retirement accounts, a verifiable beneficiary must be explicitly named.

Documentation and Verification

Documentation is so important. You should not rely on word of mouth or hope that things fall into place. Document and verify. For example, do not simply “hope” that things will work out. Ensure that you have the appropriate legal documents that detail the rights of survivorship and the survivorship clause. Certain assets can transition without going through probate – but only if their respective documents are properly in order and unambiguously reflect the non-probate intention.

Planning Can Help

Navigating the complexities of Florida’s probate process can feel overwhelming. It is often easier to approach probate from a perspective of building an estate plan that minimizes its role in the future. There are many estate planning tools that you can use to reduce the burden of probate on your beneficiaries. For example:

Living Trust

A living trust can serve as a key cornerstone of your estate, and an effective mechanism for bypassing Florida probate.

A living trust allows the estate planner to place assets – like real estate, bank accounts, personal property, etc. – into a trust while they are still alive. The creator of the trust often names themselves as a trustee, thereby retaining control over the assets in trust. A successor trustee that the individual trusts can be named to take over the administration of the trust once the trustee passes away.

Gifting Assets

Probate is only applied to assets owned by a person when they pass away. If ownership is transferred prior to a person’s death, the asset is no longer owned by the gifting individual. The asset is distributed to the intended party prior to a death taking place, and probate on the item is never required.

This is a common enough strategy used by elderly parents to, for example, gift their home to their child or grandchild. This would certainly eliminate the house from the parents’ estate – but a word of caution is warranted here. There are tax implications to consider when making large gifts. The very nature of a gift, too, means that the one giving the gift will no longer have control over the asset. People should very carefully consider all of their options and their potential implications before making a decision they cannot take back.

Professional Help in Probate – Contact Suncoast Civil Law

Retaining legal counseling in Florida probate matters often helps to expedite estate settlement, and helps to ensure the protection of beneficiaries’ interests. To learn more about how our experienced team can help you in your own Sarasota will & probate matter, contact the experienced legal counsel at Suncoast Civil Law.

Sources:

floridabar.org/public/consumer/pamphlet026/

investopedia.com/articles/personal-finance/102215/advice-wills-should-each-child-get-same.asp