By: Anthony Cetrangelo, Esq.

As a Florida estate planning attorney, I’ve seen how common probate pitfalls can lead to unnecessary court involvement, delays, and legal expenses for families, despite clients believing their estate plan is sound. Even well-drafted estate plans may unintentionally expose loved ones to probate challenges. Below are three common Florida probate traps I encounter, and how you can proactively avoid them with strategic planning.

Florida Probate Trap 1: Failing to Fund the Revocable Trust with Assets

Creating a revocable trust is not enough; it must be properly funded. A common mistake is leaving assets outside the revocable trust, which causes them to be distributed through the probate court despite the existence of a revocable trust. Assets such as real estate, bank accounts, investment accounts and closely held business interests can be retitled into the revocable trust to avoid probate court.

Avoidance Strategy

Work with your Florida estate planning attorney to develop a customized trust funding plan tailored to your specific needs. The funding plan may include some of the following:

• Executing Florida real estate deeds to transfer property into a revocable trust.
• Updating account ownership at financial institutions.
• Ensuring accurate and updated beneficiary on accounts.
• Executing personal property assignments.

Florida Probate Trap 2: Missing Contingent Beneficiaries on Financial Accounts

Bank and investment accounts often allow for Payable-on-Death (POD) or Transfer-on-Death (TOD) designations. However, failing to name contingent (backup) beneficiaries can force an account into probate if your primary beneficiary predeceases you. If all beneficiaries are deceased or improperly named, the asset may revert to your probate estate. These triggers can even cause probate, even if your original intent was to avoid it. A very common example of this is having a spouse as the primary beneficiary of a financial account. Then, the spouse predeceases, leaving the account vulnerable to probate if no contingent beneficiary was placed on the account before the surviving spouse passes away.

Avoidance Strategy

• Conduct a beneficiary designation review every couple of years.
• Review after any major life event (divorce, birth, death).
• Always name both primary and contingent beneficiaries on retirement accounts, life insurance, and POD/TOD account.

Florida Probate Trap 3: Owning Real Estate in Multiple States

If you own real property in both Florida and in another state, your heirs may have to open a separate probate estate proceeding (ancillary administration) in each state where real estate is located. This increases legal fees, costs, delays, and complexity to each administration process. Some states’ probate processes are known to be particularly burdensome.

Avoidance Strategy

Work with your Florida estate planning attorney and real estate attorney to develop a customized plan for multi-state property. This may include executing Florida real estate deeds and out-of-state deeds into a revocable trust.

*Bonus Tip: Regular Estate Plan Reviews Are Essential

Even the best Florida estate plans require regular review and fine-tuning over time. Significant life events, such as births, deaths, divorces, remarriages, or asset growth, all impact the effectiveness of your plan.

Key Takeaways

• Schedule an estate plan review every two to three years or after major life events.
• Work with a Florida estate planning attorney who understands Florida homestead laws.
• Understand and leverage creditor exemptions, tax exemptions, and probate avoidance strategies.

Bottom Line

Florida probate traps can be costly, time-consuming, and emotionally taxing for your loved ones. With the right strategy, you can avoid most of them. A proactive Florida estate plan is one of the greatest gifts you can leave your family.

If you have questions about protecting your assets or avoiding common probate traps, I may be reached at anthony.cetrangelo@henlaw.com to schedule a consultation to create an estate plan tailored to your specific needs and goals.