Nope, there is no punchline here.  This isn’t a lawyer joke. But this is a pretty common question when I tell people what I do.

What is a Florida Probate Attorney?

A probate attorney guides and assists people in the administration of a persons estate.  More specifically, a Florida probate attorney is versed in the often complicated rules and statutes that control in the Florida probate process.  Probate is a court supervised process in which the personal representative of a person’s estate is administered – assets are collected, creditors are paid and the remaining assets are distributed to the heirs or beneficiaries.

What is an Estate Planning Attorney?

An estate planning attorney helps people to make a general or detailed plan that determines how their estate assets are administered and distributed.  Estate planning attorneys draft and prepare Wills, Trusts, Power of Attorneys, Living Wills, Pre-Need Guardianships and an assortment of other such instruments that facilitate issues we all will eventually face.

Why is the distinction important?

It’s not.  In fact, in my humble, unimportant opinion, a Florida probate attorney and an estate planning attorney should be one in the same.  An estate planning attorney who does not regularly handle probate cases may not be familiar or kept current on what is actually happening in the Florida probate courts.  In other words, it would seem to me that it’s difficult to plan an estate if you’re not sure what will happen after a client dies.  On the other hand, a Florida probate attorney who doesn’t flex his or her estate planning skills may not be spending enough time trying to help clients avoid certain elements of the probate process.  This would be a disservice to the attorney’s clients.

Word to the wise:  There are many attorneys who will draft a “simple will” for a nominal fee.  Some of those attorneys have never, ever handled a probate case and may not really know the impact they may  have when their client passes away.  In some cases, a poorly planned and drafted Last Will and Testament can do more damage than dying without a Will.  Only a Florida probate attorney can truly advise you as to what will happen to your estate after you pass.  Before letting a lawyer draft your Will, ask if he or she has ever handled a probate case.

Working on my “elevator pitch”

Now that you know the difference, what do you think of my elevator pitch? (Work in progress)

“I’m a Florida probate attorney and an estate planning attorney.  I help people plan for their golden years and help their heirs and beneficiaries navigate through the process of settling a person’s affairs after they pass on.”

Image courtesy of: TheBusyBrain

One more time:  Wills DO NOT avoid probate in Florida (nope, not even in Gainesville, Ocala, Newberry or Jonesville!)

My practice has become more and more about probate administration and the same question keeps popping up:

Does a Will avoid probate in Florida?

Rather than hearing a resounding NO, how about this concept:  A Last Will and Testament almost guarantees probate!

This is not to say that if you die without assets that probate must be opened.  A Will is essentially a set of instructions to your executor (called a “personal representative” in Florida) and to the probate court, as to how your estate should be administered.

So how do you avoid probate in Florida?  

The short answer is a trust – a living or revocable trust to be more precise.

The more appropriate answer is:  “Don’t die with any assets in your own name.”

Harder to visualize perhaps.  How do you avoid owning anything when you pass?

• Make sure property passes in other ways automatically upon your death – i.e., declaring POD (payable on death) designations on your checking or savings accounts
• Transfer property to your living/revocable trusts
• Own property jointly with your spouse (tenancy by the entireties) or with another person (joint tenancy with right of survivorship)
• Confirm that you designate beneficiaries to your life insurance or retirement accounts – update them if necessary!

These methods allow you to pass on property outside of probate, rendering them “non-probate assets.”

So, do I still need a Will?

Yes, of course.  You never know what else you might own during or after you pass.  If, for example, you suffer fatal injuries from a car accident, your survivors can sue on behalf of your estate.

Furthermore, if you have minor children, you are going to want to name guardians to care for your children after you pass.   Yes, you can do that with a Will!  In fact, it’s the most common way to prepare for the possibility that you are not there to care for your children if you die.

Bottom Line:  Wills serve many useful purposes, but don’t let anyone tell you that a Will can avoid probate!

Yes, there’s a time and a place for bargain shopping, but I’ll never understand how a person who has worked so hard to build an estate, however modest or grand, decides that planning their legacy for their children or heirs should be reduced to a $49.99, off the shelf or online Will and Trust kit.

I’m currently probating an estate and the Codicil (an amendment to a Will) was improperly executed.  The codicil read that the original beneficiaries under the Will were to be removed and replaced by the new beneficiaries in the codicil.

As you might have guessed, the codicil was improperly executed and was held to be invalid.  The originally named beneficiaries stood to inherit the property because of the mistake.  A $75,000 mistake.