New Berlin, WI asked in Estate Planning and Probate for Wisconsin

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?

Related Topics:
1 Lawyer Answer

Thomas B. Burton

Answered
  • Estate Planning Lawyer
  • Eau Claire, WI
  • Licensed in Wisconsin

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.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.