Probate Administration & Litigation

Manner of Passing Assets at Death

Probate—

Assets owned solely in the decedent's name, as well as interest in property held as tenants in common, must be administered and disposed of under court supervision as governed by the decedent's Last Will and Testament or, where no Will is present, under State law. Not only does this create delays but may also cost as much as 3% of the value of the gross estate.

If a trust is in place, assets governed by the trust are administered and disposed in accordance with the trust agreement; therefore, they are not subject to probate.

Basis Rules:

• Transferred Basis: A person who receives property as a gift has the same basis as that of the transferor.

• Stepped-up Basis: A person who receives property from an inheritance has a basis equal to the fair market value of the property at the decedent's death.

• From the perspective of the recipient of the property, the higher the basis of an asset the lower the gain that would be recognized upon a subsequent sale; therefore, a recipient usually prefers receiving property from an inheritance. However, this benefit must be evaluated against the donor's estate tax rate which could be substantially higher. In such a case, it may be more advantageous to gift the property during the donor's lifetime.

  Fundamental Strategies:

  All Persons - Under $2,000,000

  • Objective: Avoid probate and guardianship, minimize clearance costs, and attain step-up in basis upon client's death.
  • Solution: Establish and fund a Revocable Living Trust.

  Married Couples - Greater than $2,000,000, less than $4,000,000

  • Objective: Eliminate estate taxes from both estates, avoid probate and guardianship, minimize clearance costs, and attain step-up in basis for assets owned by each spouse upon death.
  • Solution: Each spouse establishes a Revocable Living Trust containing provisions to maximize each spouse's Unified Credit and funds each trust with one-half of the marital estate.

If you are domiciled in the State of Florida or own Florida real estate or you are an heir to an estate subject to administration in Florida, we should be able to help you.

Click here to complete our Probate Administration Questionnaire for an evaluation of the administration of an estate or call us toll-free at 1.888.FL.TRUST.

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