Florida Probate Myths – A trust always avoids probate in Florida

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This is a common misconception! (Unfortunately, too common)

Trusts do NOT avoid probate if the trust (revocable trust or living trust) was not funded properly before the death of the decedent.

For example, if mom created a Living Trust and all of her life insurance, bank accounts and other assets were paid out to the trust when she died (via a beneficiary designation), except for her house, the house would need to go through probate administration (albeit a relatively simple administration.)

Bottom line: Don’t assume that just because mom or dad had a trust, probate in Florida is completely avoided.

3 Responses to Florida Probate Myths – A trust always avoids probate in Florida
  1. [...] Florida Probate Myths – A trust always avoids probate in Florida [...]

  2. Pete
    June 20, 2010 | 10:15 pm

    My mother is elderly and living in Florida. My father just passed in Sept. 2009. They have a condo and both their names are on the mortgage. My mother was mentioned in their wills as the responsible party should my father pass which became the case. My brother and I are also listed as responsible parties in their will should my mother pass. What we want to know is do we need a quit claim on their condo? Also what is a quit claim anyway? Also, my brother and I are listed as responsible parties and not as executors…is there a difference between the two or are they actually one in the same?

    • long
      September 6, 2010 | 4:04 pm

      Pete:

      A quit claim deed transfers a person's interest in real estate to some other party. However, in this situation, it could result in some unintended tax consequences. I would suggest your mother consider an "enhanced life estate deed" (aka Lady Bird Deed) in this situation but not without some consideration for other issues (mortgage liabilities, etc.) As far as "responsible parties v. executors, I couldn't answer unless I knew the context (I would have to read the Will.)

      Feel free to contact me for phone consult (no obligation whatsoever.)

      Thanks for your question!

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