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Can My Heirs Completely Avoid Probate if My Assets are in a Trust at the Time of My Death?

Assuming every asset under your sole control is held in trust, it is possible for your heirs to avoid probate. Similarly, certain jointly owned assets are protected from probate, such as a home titled to you and your spouse with the right to survivorship. However, since most people do not have every asset protected, some items typically go through a probate process.

It is important to understand that avoiding probate does not necessarily mean avoiding all judicial involvement in distributing the property in a trust. Florida statutes identify several examples of the court’s role in trust proceedings, including the following:

  • Invocation of the court’s jurisdiction by an interested person or as provided by law
  • Determining the validity of a trust or its administration or distribution
  • Proceedings related to the construction of a testamentary trust, which is a trust created by the terms of a will that goes into effect on the date of the decedent’s death

Everyone has unique financial circumstances, and creating a revocable trust to transfer assets out of your direct ownership provides a wide range of benefits. Whereas some individuals may choose to set up a revocable trust to avoid probate, others may be more interested in the tax advantages. It is important to work with an experienced Florida estate planning attorney who can help identify your specific needs and the proper tools to meet your goals.

Furthermore, keep in mind that revocable trusts require periodic updates, either every few years or whenever you go through a significant life event — marriage, divorce, births of children and grandchildren, etcetera. An attorney with skills in trust administration and maintenance can keep your details current.

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