Estate Planning and Real Estate: attempting to avoid probate

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July 22, 2024

Estate planning and probate share a common goal and work in tandem to achieve the best possible results when dealing with the financial and property affairs of the deceased. Preparing a proper Will can leave clear instructions for how an estate is to be divided and bequeathed and ensure that the family of the decedent aren't left questioning what their loved one would have wanted. A properly prepared Will can be used to identify the assets of an estate and how those assets are to be divided and distributed totheir surviving family and friends. H owever, even with a Will in place, probate is still a necessary process by which the Will of the decedent will be proved to be a true document in a court of law. This oversight by the court is in place to prevent any bad actors from attempting to claim assets that are not rightfully theirs by forging documents or claiming to know the "true intentions" of a deceased person.

The only true way to completely avoid the necessity of probate proceedings is for a person to establish a Trust during their lifetime and assign their property to the trust. Since the trust and not the person owns the property, the trust holds the same powers and is able to make the same decisions that a Personal Representative does in a probate matter. This is one of the main strategies used to avoid the added expense and effort of probate proceedings. The main pitfall of establishing a trust is cost. Setting up a trust is a far more involved and time-consuming process than drawing up a Last Will and Testament, and as such is not always an affordable option for all property owners.

One of the aspects of estate planning that is unique to Florida is the recognition of so-called "Lady Bird Deeds." These deeds, also known as an "Enhanced Life Estate Deed" are only recognized and valid in 5 states, the others being Texas, Vermont, Michigan, and West Virginia. As such, many of our clients have never heard of these deeds and aren't familiar with their unique features. A Lady Bird Deed conveys title of a property to a particular person for the extent of their lifetime in much the same way a typical deed does, but also contains a provision that lists "remainders", or persons who will automatically take possession of the property upon the death of the grantee. At death, a death certificate is the only document required to transfer title of the property from the grantee to the remainder. Lady Bird Deeds are not ideal for all circumstances, however. If a Grantor wishes to change their estate plan, i.e. to include another heir or disinherit someone, an entirely new deed will need to be drawn up, executed, and recorded in the public records.

There are other types of deeds that convey ownership upon the death of an owner, such as deeds that establish Joint Tenancy with Rights of Survivorship. These deeds establish two people, typically a married couple, as equal co-owners of a property and upon the death of one owner, 100% interest is automatically conveyed to the surviving owner. However, upon the death of the other owner, the full ownership of the property is retained by their estate and probate must be initiated in order to convey the title to their heirs. We have had clients who believed they would not need to pursue probate since their understanding on the definition of "survivorship" was mistaken. These types of deeds only apply to the persons named in the deed as Grantees and have no ability to convey title once all grantees have passed away. Once all Grantees have died, the property is retained by the estate of the last living Grantee and probate must be initiated to transfer ownership of the property. Since estate planning deals with the sensitive and often frightening notion of mortality, many people avoid the process until the last possible moment, and this can end up being a major issue when it comes to probate. Sometimes people write handwritten wills or make adjustments to their wills at the end of their lives and these sort of written documents can be difficult to prove valid in court. Other times, conditions like dementia or Alzheimer's can alter a person's capacity to make decisions and estate planning becomes impossible. These probate cases, which are typically administrative procedures, can become contested, increasing costs and stress, and ultimately reducing the value of an estate.

There are a lot of options available when it comes to estate planning but in most cases, even with a valid Will in place, an estate will need to be probated in order to ensure the proper and legal transfer of real property. Even the most comprehensive estate planning can't account for every possible scenario which may arise, and when those events happen, a probate attorney should be the first person you call. When plans and reality don't exactly agree, we're here to help you find the best possible way to move forward.

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.