Is Probate A Dirty Word?
If Floridians were asked
to write a ten command-
ments of estate planning,
the very first command-
ment would probably be,
Thou shalt avoid probate.
Indeed, my clients fre-
quently rate probate avoid-
ance as their number one
concern. It’s almost like
probate has become, well, Joseph S. Karp,
a dirty word. Should it be? C.E.L.A.
First, let’s define what probate is
and isn’t. Probate is the process
whereby the Probate Court super-
vises the distribution of a deceased
person’s assets. The court works with
the decedent’s personal representa-
tive(s) to ensure that creditors are paid,
and the beneficiaries listed in the will,
or if there is no will, beneficiaries un-
der Florida law, take possession of
their inheritances.
So is probate as unpleasant as many
believe it to be? For many families,
the answer is yes, for these reasons:
1. It can be expensive, adding addi-
tional legal and administrative fees
2. It can be burdensome and incon-
venient for family members.
3. Depending on the complexity of
the assets and the estate, probate may
be a lengthy, drawn-out process that
prevents heirs from receiving their in-
heritances for months, sometimes even
years.
4. The finances and dispositions of
the decedent become public record,
which many find objectionable.
5. In some cases, a married couple
with a taxable estate will pay unnec-
essary estate taxes if they fail to adopt
probate-avoidance strategies like a
bypass trust.
That said, for other families, pro-
bate doesn’t have to be a dirty word.
In fact, it can be a very
desirable option under
certain circumstances,
including:
1. If the estate is so small
that it can go through an
expedited probate proce-
dure, reducing the cost and
hassle of the process for
survivors.
2. If the person(s) who
want to set up a revocable
living trust to avoid probate do not
wish to, or don’t have the capacity, to
do the legwork involved in transfer-
ring assets into the trust and contin-
uing to monitor that all new assets get
transferred into the trust.
3. If a person actually desires court
oversight, to help ensure that his wish-
es are carried out as he desires.
4. If a person’s spouse is on Medic-
aid, the person may want to set up a
testamentary special needs trust—
which must go through probate—to
benefit the spouse while preserving
the spouse’s eligibility for Medicaid
benefits.
★ Listen to Joe Karp with
★
Anita Finley on Saturday,
June 14 from 7:30-8:00 AM
on WSBR 740AM and on the
Internet at www.wsbrradio.com.
★ ★
Joseph S. Karp is a nationally certified
and Florida Bar-certified elder law attorney
(C.E.L.A.) specializing in the practice of Trusts,
Estates and Elder Law. His offices are locat-
ed at 2500 Quantum Lakes Drive, Boynton
Beach; 2875 PGA Blvd., Palm Beach Gar-
dens; and 1100 SW St. Lucie W. Blvd., Port
St. Lucie. Call him at 561-752-4550 (Boyn-
ton); 561-625-1100 (Palm Beach Gardens);
or 772-343-8411 (Port St. Lucie). Toll-free
from anywhere: 800-893-9911. E-mail: KLF@
Karplaw.com. or website www.karplaw.com