Many experienced estate attorneys in Florida will advise that it is often best to do everything reasonably to try to avoid probate. In some instances, the question arises whether there is any good reason to open a probate. In the right situation, the answer can be a resounding "yes."
Like many questions under the estate and probate law, the answer depends on a number of factors.
A frequently employed estate planning instrument is the Living Trust or Revocable Trust. Such a Trust can minimize or avoid probate altogether. In order to be effective, the Trust should be funded, i.e. assets should be transferred into it.
A Last Will and Testament can be challenged in Florida but the timeframe to do so is not always open-ended.
As estate lawyers, we often see clients who use the terms DNR ("Do Not Resuscitate") and Living Will almost interchangeably. However, in Florida, they are different in many ways.
In Florida, Section 736.0408 Fla. Stat. provides that a Trust may be created to provide for the care of an animal. Most estate lawyers call this type of Trust a "Pet Trust."
If the Settlor does not take the steps necessary to fund a Living Trust, in most instances a probate will be necessary in order to allow the transfer or liquidation of the Settlor's assets. This would apply to most assets which are titled only in the Settlor's name and which do not have a beneficiary or a POD designation.
In Florida, when a Last Will and Testament is submitted to probate, it must first be found to have been properly executed.
When a person goes to the trouble of preparing a Will and executing it, it is important that the Will be signed in such a way that it is enforceable.
In Florida probate, certain types of property are exempt and will be received by the surviving spouse, if there is one, and if there is no spouse, then by the decedent's children. However, steps must be taken to protect entitlement to exempt property.