Q: what are the risks to using probate rather than a trust in florida?
My great aunt just passed (she lived and drafted her documents in Florida). her attorney is advising using probate rather than the trust. why do this? what's the point of doing a trust then?
A: If your Aunt has a properly set up Trust, then the best way to avoid probate is often to have the assets pass through the Trust. I do not know the specifics of this situation, but it is possible that your Aunt set up the Trust but did not properly fund the trust (meaning she didn't transfer her home or other assets into the name of the Trust). If this is the case, the Trust itself would be an empty vessel, and her assets which remain outside of the Trust would still need to go through probate to get to your Aunt's heirs. I would discuss this situation further with your attorney and ask him/her why they are saying the probate action is necessary. Finally, it may be a situation where some of the assets are in the Trust and some of the assets are outside of the Trust. In Wisconsin, if you have assets which exceed $50,000 in value held outside the Trust, then a full probate proceeding is needed to transfer those assets to the heirs. If the assets are below $50,000 there is a simplified process for transferring assets, but it still involves the court system. I am not sure if there is a similar system in Florida.
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