3 Ways to Protect Your Estate from Probate Delays

Probate delays can be a source of stress and financial strain for your loved ones after your passing. When assets are tied up in Florida probate, it can take months or even years before your beneficiaries can access their inheritance. Fortunately, there are proactive steps you can take to protect your estate from these delays and ensure a smoother transfer of assets. This article explores three key estate planning strategies for Jacksonville residents to minimize probate delays for their loved ones.

In his video, Jacksonville Probate Attorney Bill O’Leary explains the three key strategies to avoid probate delays: (1) create a revocable living trust, (2) make beneficiary designations, and (3) hold property jointly with right of survivorship.

Why Should You Have a Revocable Living Trust?

A revocable living trust is one of the most effective tools for Jacksonville clients to protect their estates from probate delays. Unlike a will, which must go through the court-supervised probate process, assets placed in a revocable living trust can be passed directly to your beneficiaries without court intervention smoothly, quickly and easily.

When you create a revocable living trust, you transfer ownership of your assets into the trust. While you’re alive, you maintain control over these assets as the trustee, and you can change or revoke the trust at any time. Upon your death, the assets in the trust go directly to the beneficiaries you’ve designated, bypassing probate entirely. This means your loved ones can access their inheritance without delay or additional legal fees.

Can I Create My Own Living Trust?

A key point to remember is that only assets placed in the trust are protected from probate.  This step known as funding the trust, is often missed by lay people who use DIY methods to create a trust or even by some attorneys who practice as generalists in the field.   It’s essential to work with a qualified estate planning or probate attorney to ensure all appropriate assets are properly titled in the name of the trust. Otherwise, those assets may still need to go through probate, negating the benefit of the trust.

Why Do You Need to Designate Beneficiaries?

Designating beneficiaries on certain financial accounts is another simple yet powerful way to avoid probate. Accounts like retirement funds, life insurance policies, and bank accounts can have beneficiary designations that allow the assets to transfer directly to the named beneficiary upon your death. These designations often supersede what’s written in a will, ensuring a swift transfer of funds without court involvement.

The benefit of beneficiary designations is twofold: they allow for the smooth transfer of assets, and they prevent those assets from getting caught up in the probate process. It’s crucial to regularly review and update your beneficiary designations to reflect changes in your family situation, such as marriage, divorce, or the birth of a child. Keeping these designations up to date ensures that your assets are distributed according to your wishes.

A word of caution. Relying on beneficiary designations can expose the account to the beneficiary’s creditors, such as the beneficiary getting a divorce or in a car accident where the account can be taken away from the beneficiary. This is why a revocable living trust often is a better solution than relying exclusively on beneficiary designations.

Failing to name or update beneficiaries could result in assets being distributed through probate, which can lead to unnecessary delays and expenses.

Why Should You Hold Property Jointly with Right of Survivorship?

Another way to avoid probate is by holding property jointly with right of survivorship. This arrangement allows property ownership to automatically transfer to the surviving joint owner when one owner passes away, without the need for probate.

Joint ownership is commonly used by spouses for homes and financial accounts, but it can also be applied to other types of property. The main advantage of holding property jointly with right of survivorship is that it provides a seamless transition of ownership, allowing the surviving owner to take control of the property immediately after the death of the co-owner. This can be a significant relief during an already challenging time.

The problem with joint ownership is while the asset passes smoothly to the surviving owner at the first owner’s death, often probate will be needed later on at the death of the surviving joint owner. It is for this reason that a revocable living trust often is a better solution than joint ownership.

What Implications Exist for Adding Someone as a Joint Owner of My Asset?

However, there are risks involved. An article from Kiplinger, “Joint Account With Rights of Survivorship and Alternatives Explained” explains that making a child joint owner of a bank account, investment account or even a safe deposit box, can have unintended consequences.  Adding someone as a joint owner means they have equal control over the property during your lifetime. You could also expose the property to their potential liabilities, such as debts or lawsuits. For example, if your co-owner is involved in a car accident and faces legal claims, your jointly owned property could be at risk of a forced sale. It’s essential to carefully consider who you add as a joint owner and understand the legal implications of joint ownership.

Avoid Hardship for Your Heirs by Protecting from Probate Delays

Taking these three steps—creating a revocable living trust, designating beneficiaries, and holding property jointly with the right of survivorship—can significantly reduce the likelihood of Florida probate delays and provide peace of mind for you and your loved ones. To ensure that your estate plan is legally sound and tailored to your unique situation, it’s always best to consult with an experienced estate planning attorney. If you’re ready to get started with an estate plan or want to learn more about how you can protect your loved ones from probate delays, schedule a discovery call with Team Legacy.