When you pass away without having an estate plan, it is more likely than not that your beneficiaries will have to go to court to transfer your assets to their name. Specially, if you fail to designate beneficiaries to assets like bank accounts, and other assets in financial institutions.
To most, the number one asset is their home. When the home is titled under husband and wife, if titled correctly, after the death of the first spouse, the home will go by operation of law to the surviving spouse. However, at the death of the surviving spouse, if no planning is done, the home will have to be transferred through the Florida Probate System when you pass away.
Your primary home in Florida is considered to be your Homestead. Although your Homestead is not considered to be a Florida probate asset, an administration in the probate court must be open in order to petition to court to enter an order determining the home to be your Homestead.
If you have to go through the Florida probate system, then you will need to hire an attorney. Florida law states that an attorney can charge up to 3% of the value of the estate as a reasonable fee. Some attorneys use a combination of flat fees or hourly fees depending on the circumstance. If there are liquid assets then the attorney could petition the court for its attorney’s fees as part of the probate process, but absent any liquid assets, it is likely that your beneficiary may have to pay up front for the probate attorney services.
Even if there are liquid assets, this means that your beneficiaries will end up with less funds than you might have originally planned. Although estate planning can seem expensive, it can save you or your beneficiaries thousands of dollars when you pass away.
In addition, Florida probate is a public process, meaning that most of the documents that are filed during the administration are public record. Anyone will be able to request the court for the documents filed, and there will be little privacy.
Lastly, most probate cases take an average of 5 or 6 months, up to 2 years or more when the probate is contested. This means that your beneficiaries will not be able to immediately sell your properties and you will have to wait for a judge to enter an order. Overall, it is better and more efficient to avoid the court system.