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What is Probate and How to Avoid It

By Nehemiah Jefferson, Esq., LL.M.

What is Probate? Probate is a court supervised process to determine where to distribute a decedent’s assets whether the decedent had a valid will (“testate”) or whether the decedent did not have a valid will (“intestate”).  Assets titled in a decedent’s name creates the estate.

Probate can be a long and often expensive process.  Therefore, when it comes to estate planning, one of the primary objectives is to minimize or outright avoid probate altogether.

Certain assets may be exempt from probate.  This is how you can avoid probate.  For example, property transferred into a trust, joint ownership with rights of survivorship accounts, payable upon death accounts, and accounts that have beneficiary designations (e.g. life insurance, retirement plans) may all be exempt and avoid probate.

In addition to the above, real estate in Florida and Texas may avoid probate with the use of a “Lady Bird Deed.” This deed is also referred to as an “Enhanced Life Estate Deed” and allow an owner of a property to designate a beneficiary to receive the property upon death.  Moreover, there are two other benefits.  First, a co-owner could receive the property upon death with the use of “rights of survivorship” language which can be included in the deed.  Secondly, since the property is transferred on death, the beneficiary receives a “stepped up” basis for tax purposes, which minimizes potential tax consequences when or if the property is sold.

Estate Planning should be comprehensive.   This means that there may be a myriad of tools used to provide client solutions.  As with any legal matter, you should consult an Attorney. This article is for educational purposes only, is not legal advice, is not a substitute for consulting legal counsel, and does not create an attorney-client relationship.

Nehemiah Jefferson, Esq., LL.M., is Principal of Esquire Tax Firm PLLC. The firm practice areas include Civil and Criminal Tax Representation, Estate Planning, Probate, Guardianship, and Business Planning. He earned his Bachelor’s degree from The Florida State University, his Juris Doctor from John Marshall Law School (Atlanta), and LL.M. in Taxation from the University of Alabama. Attorney Jefferson is licensed to practice law in the State of Florida, Texas, The District of Columbia, and is a member of the United States Tax Court Bar. He may be reached at www.esqtaxfirm.com.

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