When a loved one passes, their estate can go through probate or trust administration. These distinct processes depend on how the decedent structures their assets. Probate is a legal process that administers and distributes an estate according to the decedent’s will or, if the person died without a will, according to Florida’s intestacy laws.
Trust administration happens when the decedent establishes a trust during their lifetime and appoints a trustee to manage and distribute assets. The trust contains instructions on the distribution of assets and often bypasses the probate process.
An experienced Florida estate planning attorney can help determine which process is best for your situation when you complete an estate plan or can guide personal representatives and trustees through administering a will or trust.
What is Probate?
The probate process is the court-supervised process of distributing assets that the decedent did not include in a trust. It also handles beneficiary designation. The probate process includes:
- Filing a petition and the will with the court
- Appointing a personal representative if the decedent died intestate or approving the personal representative the decedent named in the will
- Filing a notice to creditors, beneficiaries, and other interested parties
- Taking an inventory of the estate’s assets
- Paying creditors and other expenses
- Paying real estate taxes
- Distributing assets to beneficiaries
- Creating a final accounting
- Filing a closing statement
The probate process is very public, as the records are available. It can take 6 to 18 months or longer to complete the probate process, depending on several factors, including the complexity of the will and whether family members contest the will. Estate probate attorneys can represent the estate should someone challenge the will.
What is Trust Administration?
If the decedent has a trust, the process is more private, as many documents do not require court supervision. Key steps in trust administration include:
- Posting the fiduciary bond, if necessary
- Trust asset management
- Protecting the value of trust property
- Enforcing legal claims of the trust
- Distributing assets under the trust
- Maintaining or dissolving the trust based on the decedent’s intent
Trust administration is often less expensive and faster than probate, as a trust does not need to go through the probate court.
Key Differences Between Probate and Trust Administration
The significant differences between the probate and trust administration processes include:
- Court Involvement: Probate requires court involvement, while trust administration does not
- Privacy: The probate process is a public record, while trust administration remains private unless someone contests the trust, in which case, it goes to court and becomes a matter of public record.
- Time: Trust administration is usually faster because trusts generally do not go through the court process
- Cost: Trust administration is generally less expensive, as the process is shorter and you do not have court fees and other expenses related to probate
- Flexibility: Trust administration is more flexible, as it is led by the trustee, as opposed to the probate process, which requires court oversight
In addition to the additional cost and loss of privacy in the probate process, there is a higher potential for conflict from disinherited heirs when the estate uses only a will.
Which Process is Right for You?
When creating an estate plan, the probate attorneys at France Law Firm can review your situation and recommend whether you need to create a trust or if a will will work best for you. Factors affecting your decision include:
- Complexity of the estate
- Size of the estate
- Privacy concerns
- Cost sensitivity
- Family dynamics
- Blended families
- Federal tax laws
Contact France Law Firm
A wills and estate lawyer at France Law Firm can review your situation, advise you of how state laws may affect your estate, and help you create an estate plan unique to your financial situation and needs. Contact us today for a consultation by calling 850-224-1040 or completing our online contact form.
