A number of people want to avoid probate. While there are some advantages to bringing a probate (cutting off creditors
claims; and generally wills are cheaper than trusts) there are ways to avoid probate in Florida that do not involve living
trusts or revocable trusts.
When someone dies and leaves property, and by property I mean not just real estate but anything of value- bank accounts,
CD's, insurance policies, anything that's worth money, there's 3 basic ways that property can pass at death.
1st way is 'by contract', where the person who died had a contract with some third party who is holding the money or property,
and the contract says that they will pay or transfer the property over to named beneficiaries upon their death. Most common
example of this is life insurance, where you have a contract with Met Life, the contract says that you name or your wife as
beneficiaries, and when you die the wife provide the death certificate to Met Life, and they simply cut checks to the beneficiaries.
But bear in mind you can do this with most sorts of financial instruments; Bank accounts, stocks, bonds, CD's 401K's, annuities,
IRA's and that sort of thing.
2nd way property can pass at death is by operation of law; this is where two or more people both own the property and when
one of them dies, it passes automatically to the surviving owner or owners. Most common example of this is "Joint Ownership"
or "Joint Tenancy with rights of survivorship". There are other types, but this is the most common. This is very common among
married couples; husband and wife are nearly always joint owners of bank accounts and their home; it is less common but not
unheard of between unmarried people.
3rd way property can pass at death is by probate; where if you left a will property passes by the will, or if you didn't
leave a will it passes according to the states intestacy laws. Basically, a judge looks it over and signs off on who gets
what. BUT, the point is property USUALLY only passes by one of these methods at a time; if it passes by operation of law or
by contract it doesn't usually pass by probate as well.
A living trust falls under category 1, a contract. A revocable trust is a special type of contract between yourself as
the person setting the trust up (called Grantor or Settlor), yourself as the person running the trust (the 'Trustee') and
yourself as the person who the trust is for (the 'Beneficiary'). Even though you are one person, you are wearing three different
hats for the purposes of the trust, and depending on which hat you are wearing, you have a different position. Because the
trust survives your own personal death, the trust continues and the money or property in the trust can be distributed without
However, there are other, simpler, methods of avoiding probate.
One method involves naming pay on death beneficiaries on financial instruments. This can be done with savings accounts,
checking accounts, annuities, mutual funds, savings bonds, retirement accounts, CD's and almost any sort of money type account.
All you need to do is to contact your bank, broker or agent and tell them you want to name a "pay on death" or "Transfer on
death" beneficiary. However, be aware that if the account is some sort of Tax Deferred account, such as most IRA's, 401K's,
403B's, Keogh Plans, or any type of account where the money you put into it was not taxed at the time but is taxed after you
take it out, talk to your banker, broker or agent about how to name the beneficiaries so that they do not have to take it
all out at once and have to pay taxes on the whole sum in one year, but so that they can take it out over a period of years
and hopefully not pay as much taxes on smaller distributions.
Another method involves naming someone else as a co-owner of the property. The most common method of this involves naming
someone else as joint owner, joint tenant or joint owner with right of survivorship. This can be useful as out lined above;
but there can also be some dangers. One danger involves the possibility of a gift tax. Greatly simplified, if you give someone
property that is worth more than about $12,000 then a gift tax return should be filed with the federal government, unless
that person is your legal spouse. If you put your son or daughter on an account, or a house deed, then a gift tax return may
be due. Additionally, by putting someone on as a co-owner, they own that property now, and have full access to the property.
The problem with this is that sometimes joint owners will loot financial accounts. Also, sometimes parents put their children
on the deed to the house, the parent later decides that they want to sell or mortgage the house, and the child either refuses
or demands money. Additionally, if you put your child on as joint owner, and if they get in financial trouble, people that
they owe money to may come after that asset- whether it's your bank account or your house. I, generally, do not encourage
people to put non-spouses on as joint owners. With regard to financial accounts, you are much better off simply naming your
children as pay on death beneficiaries; you own the account during your life time, you have sole use and possession, and they
will get the property after you die, but only after you die.
With respect to real estate, there is another solution. Florida recognizes what are called Ladybird Deeds, or sometimes
called Enhanced Life Estate Deeds. Essentially what they do is allow you to keep the property for your lifetime; you are the
sole owner, you retain full rights to sell, mortgage, give away, or otherwise deal with the property so long as you are alive.
If you sell or otherwise transfer the property during your lifetime, you keep the money. If you don't do anything with the
property during your lifetime, though, when you die all your children have to do is record your death certificate in the county
records and the property becomes theirs outside of probate. This is considered a revocable, or incomplete, transfer, and will
not affect your ability to apply for Medicaid if you have to go into a nursing home.
Between these tools- naming beneficiaries on financial accounts, and executing a Ladybird Deed on your house, you can largely
avoid probate without use of a revocable trust.