Estate administration's come in lots of shapes and flavors and sizes and colors but there's two major ways that most estates are administered. There is probate administration and Trust administration. Within probate administration, you're often going to find that there are summary administrations (where the assets are less than $75,000 or where the person's been dead longer than two years) and there's formal administrations (where there's more complex estates and we need to have a personal representative appointed to deal with different things that can appear, like creditors or other administrative bodies’ involvement, taxes, real estate sales, etc).
Probate is necessary when a decedent dies without a will or has left assets in their name for disposition solely through a will. Probate may also be avoided through what is known as a “will substitute.” Some examples of Will substitutes include trusts, life insurance policy beneficiary designations, pension plans/ IRA beneficiaries, joint bank accounts, joint tenancy with rights of survivorship property, and Stock/Investment Transfer on Death designations, Bank Account Pay on Death designations, Life estate deeds, Lady Bird Deeds, etc. Typically, only assets owned or inherited by a decedent in his or her individual name require probate. If your assets are jointly owned with a spouse, or “with rights of survivorship” with another person, typically they will pass to the surviving owner without probate. All wills must go through probate and unlike a trust, a will becomes public record after the decedent’s death. If someone dies intestate, meaning they die without a will, then their assets will be distributed according to the Florida Probate statutes.
A trust administration is a private process that doesn't go through the court process. We help the Trustee file a notice of trust and we make sure that the creditors’ claims, tax issues, property concerns and beneficiary distributions are resolved. However, it’s all done in private and doesn’t involve the courts. The beneficiaries receive their money and we make sure they sign releases so that they can't later on claim that they didn't get what they were supposed to get. We continue to help the Trustee manage any assets that are in the estate and deal with any taxes before closing the trust administration. A Trustee has many duties, which include, but are not limited to, holding trust property, maintaining records of all trust transactions, distributing trust income to the beneficiaries as directed, paying trust/estate bills and making tax decisions. Trust administration can be quicker, more efficient, and reduce the risk of costly probate litigation, which can save money and relationships.
It is important to make sure you “fund” your trust to successfully to avoid probate. Those who have individually owned assets, as well as assets in the trust, might need both a probate administration and a trust administration to complete the distribution process. One way to accomplish this is through a “Pour Over Will.” A pour-over will transfers all of a person’s personal owned property and assets into a decedent’s trust, through their will, upon their death. This is a catchall way to ensure that your trust, with all of its protective measures, is funded upon death.
Regardless of the estate administration process, it is highly recommended that you contact an attorney for guidance. If you have any questions regarding the administration of an estate, please call The Estate Plan at (305) 665-8888. We’d be happy to help.