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Key Differences Between Probate and Trust Administration

There are a number of ways in which people can decide how they want to distribute their assets to loved ones and others in the event of their death. Each option comes with different features and legal requirements.

Generally, when a person dies in Florida, his or her property will be distributed either through the probate process or the administration of a private trust. If you execute a will, a court will review and enforce the legal document in the probate process. If you create a living trust, your assets will be distributed privately by a trustee of your choosing.

How Probate Works

Probate is a court proceeding in which a judge reviews the will and hears any challenges to its legal sufficiency. The court uses the process to gather the deceased person’s assets and identify outstanding debts, taxes, and other expenses to be paid. A judge may also hear testimony before ordering that assets be distributed to those identified in the will or otherwise.

To start the process, a personal representative for the deceased must file a probate petition (including the will) in court. The personal representative also has to notify all interested parties of the petition, including family members and others identified in the will and any known creditors. Florida law gives creditors as much as two years to file claims seeking payment from an estate. That waiting period can often be shortened to 90 days.

The Living Trust Alternative

A living trust is a valuable option for anyone who wants to avoid the probate process. That could be because of the waiting periods related to that process or because a person wants to keep the distribution of his or her assets.

The trust option avoids probate by transferring a person’s assets before he or she dies. To do that, you have to sign a trust agreement identifying the assets to be transferred and appointing a trustee to manage the trust. A person creating a trust can name his or herself as the trustee or may choose a bank, financial professional or other person or entity to fill that role. The trust can be made revocable and can be written to allow the owner of the assets to continue accessing and using them.

You also have to go through the process of actually transferring the property to the trust.

What’s Right for You?

There are a number of factors to weigh in deciding between a will and a trust. South Floridians considering an estate plan are well advised to seek the counsel of an experienced Miami probate attorney.

Trusts are likely to cost more money up front because they’re more complicated than wills and require you to take the various legal steps to transfer the assets. These agreements are easier to manage when a person dies, however, because they don’t have to go through the courts in the public probate process.

Contact a Miami Probate Attorney at Hoffman & Hoffman P.A. Today

Hoffman & Hoffman is a South Florida estate planning law firm whose attorneys help people manage their assets and decide how property will be distributed in the event of their death. We are pleased to represent clients throughout South Florida, including in Ft. Lauderdale, West Palm Beach and Coconut Grove. Contact us to speak with an attorney today.