What is Better in Florida? A Will or a Trust?

One of the most common questions we receive is: “What is Better in Florida? A Will or a Trust?”

Many clients that we work with think that if they live in Florida and have signed a Florida Last Will and Testament, they no longer have to worry about a probate in Florida.

As Chris Rock can attest, Wills are often a big “slap in the face” to the assets you are trying to protect.  In Florida, assets that pass under the terms of a Last Will and Testament have to go through a process known as probate.

A Florida Probate is a judicial process by which a deceased person’s assets are administered by the courts under the terms of a valid Will (a testate probate) or if there is no will, under the default rules of the state (an intestate probate).

How much does it cost to file a Florida Probate Case?

In addition to the emotional hardship the probate process can bring during a time of mourning, a Florida probate can also be an expensive endeavor.  Probate costs vary from state-to-state, and from county-to-county, but the court costs associated with opening a probate in Florida can range from $241 to a little over $400 depending on the county it is filed in, the type of assets, the amount of assets, and the type of probate required.

For example, the probate court filing fee for a formal administration probate in St. Johns County, Clay County, or Nassau County, Florida is $400 and Duval County, Florida charges $401.

How much does are the legal fees for a Florida Probate Case?

Attorneys that assist the Personal Representative are entitled to a fee under Florida Statute Section 733.6171. The personal representative’s fee can also be as high as 3% each on the first $1,000,000 of assets under Florida Statute Section 733.617.  This means that $1,000,000 going through probate can cost as much as $60,000.

How long does a Florida Probate Case take?

A frequently overlooked drawback of probate in Florida is how long the process can take.  Depending on the caseload of the judge or judges overseeing the case, seeing a probate from beginning to end can often take 6 months to 1 year, if not longer. In Florida, a Trust does not require the expense and delays associated with a Florida probate for distributing the assets contained in the trust.

These negative aspects of probate in Florida are what make Florida Trust planning such an appealing alternative to having only a Will in Florida!  Any assets that pass under the terms of a Trust will never have to go through the probate process, and may be more protected from creditors than assets owned individually or by a couple.

Is a Florida Probate Case Private?

Another aspect of trust planning that excites many clients is the anonymity.  The inventory or a trust is not in the court records, unlike the inventory of a probate case. In addition,  property that is owned by a trust will list the name of the Trustee or Trustees of the trust on the property appraiser’s website, and not the grantor(s) or beneficiary(ies) of the trust itself.   Additionally, the interests of beneficiaries will be kept private unless a court of competent jurisdiction orders the release of such information. (If the property is claiming a homestead tax credit, the names of those eligible for the homestead deduction will also be listed).

Does a Florida Probate Case cause a Re-assessment of the Property Value

Clients often fear that any transfer of a property to a trust can cause some negative consequences, namely a re-assessment of the fair market value of the property, the forfeiture of the Florida “Save Our Homes” cap on increases to taxable value, or the loss of the homestead protection offered under the Florida constitution.  Most transfers to a trust to not have any of these risks.

Call the Law Office of David M. Goldman or visit our Jacksonville Estate Planning Lawyer website or Probate Lawyer in Jacksonville today to schedule a consultation about whether a Florida Will or a Florida Trust is better for you.  No matter who you are or where you are in life, your assets are trustworthy!

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