Basic Estate Planning and Probate

Aug 27, 2019 - Blog by


Nothing is certain in life except death and taxes.  Most adults are also familiar with the myth that “avoidance of probate” should be your number one estate planning goal.  Although minimal court involvement is preferred when distributing a decedent’s property, probate is not the evil some attorneys make it out to be, particularly in Florida.

What is probate?


Probate is the administrative process to manage the debts and affairs of a deceased individual and distribute the deceased’s remaining assets.  The probate court deals with assets held in the deceased’s name, individually, that were not otherwise transferred before death.  Depending on whether or not the individual died with a will (testate) or without a will (intestate), any remaining assets, after the creditor’s claims are paid, are distributed to the beneficiaries named in the will, or to the closest living relatives based on state law.

What is estate planning?

Simply, estate planning is a framework of one or more documents designed to assure the distribution of an individual’s assets according to their desires. Depending on the value of assets and the goals of the client, often a living (“inter vivos”) trust is a popular choice for many.  Assets transferred to the trust will not be involved in probate.  The trust is a contractual arrangement where the trustee holds property and distributes it to the designated beneficiaries after death.  Any assets remaining in the name of the deceased, regardless of the existence of a living trust, at the time of death would have to be distributed by the probate court.  Making certain all assets are appropriately transferred to the trustee, both before and after the trust is created, is often problematic.

In creating estate plans, one size does not always fit all. Depending on the individual, a basic will, along with the proper titling of assets jointly with family members, can be a more cost-effective alternative to a living trust.  For many, the costs and expenses of probate with a modest plan are comparable to the costs and expenses involved in creating and administering a trust.  There are other issues that should be discussed with an attorney prior to using either a living trust, a will, or a combination of the two as your primary estate planning tool. 

If you are interested in discussing options for your estate planning or probate needs, contact one of the experienced attorneys at Moorhead Real Estate Law Group for a consultation.