Many times people will come into my office and tell me that they heard
that they need to have a trust because they have to avoid probate.
Probate has gotten a bad reputation, but going through probate is not always
a bad thing. A probate that occurs by default because of a lack of planning
can be a bad experience, but the probate process can be a useful tool
in a well thought out estate plan.
For example, when someone dies in Florida, creditors have up to two years
to present claims regarding debts that they feel are owed to them by the
decedent’s estate. This means that when the Trustee under the trust
distributes assets to the beneficiaries, that distribution is made subject
to a two year window of opportunity for creditors to present claims.
A small probate proceeding can reduce that two year window for creditors
to present claims down to 90 days.
Another example is Florida homestead real estate. When someone dies and
a family member in the appropriate category of family members inherits
the homestead, the homestead protection against the claims of creditors
remains with the house through the administration phase of settling the
decedent’s affairs. This all happens by law however, when it comes
time to sell the homestead, the beneficiaries most likely will find that
the title insurance company wants to see that the court has confirmed
that the house is homestead by issuing an order declaring the house to
A small probate proceeding can help the beneficiaries obtain this order
declaring the house to be homestead.
Finally, people hear that they need to avoid probate because probate is
expensive and involves attorneys. However, what they don’t always
realize is that not only is it more expensive to set up a trust, but it
also costs money to administer the trust when someone dies because many
of the same steps that occur in probate have to occur with the trust.
The difference is that most of the steps with the trust occur outside
of the court system. The difference is not that attorneys are involved
in probate but are not involved in trust administration.
So the decision between choosing a will based estate plan or a trust based
estate plan should not be made based upon the “need” to avoid
probate, but based upon numerous other factors that help you and your
attorney decide whether a will or a trust will work best for you.