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The problem with probate | Estates, wills and trusts

Robert D. Schwartz
YourNews contributor
Robert D. Schwartz

STUART — When the majority of people hear the word "probate," they can tell you with certainty that they definitely want to avoid that — but why?

Many people don't even know what probate is and fortunately, have not had to experience it for themselves.

What is probate?

Probate is the name for the court proceeding through which a judge declares a Will to be valid and appoints an individual, sometimes called a Personal Representative, or Executor, to be responsible for carrying out the administration of an estate.

Probate administration allows assets to be transferred from a decedent to that decedent's heirs.

The probate process here in Florida has many negative aspects that your family would surely want to avoid.

Probate is expensive

The most commonly cited negative about probate is the expense.

In Florida, to initiate most types of probates, a decedent's heirs must first hire a lawyer. This is a state requirement for all administrations unless very specific factors are met.

Under Florida Law, as compensation for administering a probate estate, a lawyer can charge up to 3% of the entire estate value. That is money that your heirs would have been able to keep for themselves had you planned to avoid probate.

The Personal Representative is also allowed to take a 3% fee for their services under Florida law. In addition to these fees, there are court costs and can also be fees for the upkeep of the estate throughout the probate process.

That probably does not sound like much but when you consider the amount of bills you pay every month to keep your assets in order, and the amount of time that a probate can take, this amount can add up very quickly.

MORE:  Read more of Robert D. Schwartz's columns about estates, wills and trusts

A time-consuming process

The most simple of probate administrations usually takes 6 to 8 months. Any sort of complication at all can make the process take even longer than that, up to multiple years.

The probate process puts those involved at the mercy of the legal system. Involving the legal system also means that probate is a very public process.

Everything that gets filed with the court becomes a part of the public record and gives those outside your family a glimpse into your financial and family situations.

Avoid probate through planning

Proper estate planning will allow you to avoid many of these negative issues. When used correctly, estate planning tools can help you to avoid the probate process entirely.

The most common and effective way to avoid probate is through the use of a Revocable Living Trust.

Alternative probate avoidance tools can be used, but may have unintended adverse consequences that many people are unaware of.

Consult a professional

Probate is expensive, time-consuming, public and stressful on your heirs.

It is important to consult an estate planning professional when making decisions concerning your best interest based on your specific circumstances.

By utilizing the proper tools and guidance in estate planning, the whole probate process can be avoided and your family will be forever thankful.

Robert D. Schwartz is a lawyer who specializes in Florida wills, trusts and estates. Local offices are in Stuart and Port St. Lucie. For more information, call 844 303-3250.