Key Takeaways
- Probate is a court process that can consume up to 6% of your estate in fees — on a $1 million estate, that’s $60,000 gone before your family sees a dollar.
- Florida offers three practical probate avoidance strategies: a revocable living trust, a lady bird deed, and beneficiary/ownership designations.
- A trust that isn’t properly funded is worthless for probate avoidance — retitling assets is just as important as creating the documents for probate avoidance.
- Simpler strategies like lady bird deeds and beneficiary designations work well for straightforward situations, but complex family dynamics almost always call for a trust.
- There is no one-size-fits-all solution. The right strategy depends entirely on your assets, your family, and your goals — which is why working with an experienced estate planning attorney matters.
Why Probate Is Something Florida Families Want to Avoid
For families across Orange, Lake, Osceola, and Seminole Counties — from Orlando and Winter Park to Windermere, Winter Garden, Dr. Phillips, and Horizon West — few topics in estate planning cause more confusion than probate. Most people don’t think about it until they’re in the middle of it, and by then, the costs and delays have already started piling up.
Estate planning attorney Tom Moss of Sawyer & Sawyer, P.A. breaks it down plainly: probate is simply a court process. When assets are titled only in a deceased person’s name without beneficiary designations, those assets have to pass through the court system before they can be transferred to heirs. That process requires an attorney, a judge, a creditor notification period, and months of waiting — regardless of whether the person left a detailed will.
And the costs are significant. Under Florida law, a “reasonable fee” for the probate attorney is 3% of the estate, and the personal representative overseeing the estate is entitled to another 3%. That’s a combined 6% off the top. On a $1 million estate, that’s $60,000 in fees before a single dollar reaches your family.
Tom Moss puts it in perspective: “It’s quite substantial. That’s why probate avoidance is so important.”
The process itself is also far more involved than most people expect. Families often arrive at an attorney’s office with a will in hand, assuming the hard part is done. In reality, a will doesn’t skip probate — it just provides instructions for probate. The estate still has to go through a petition for administration, wait for a judge to issue letters of administration, observe a creditor publication period of at least three months, and remain under court oversight throughout. What feels like it should be a simple handoff becomes a lengthy, expensive legal process.
The good news is that with the right planning in place, probate is largely avoidable. There are three primary strategies in Florida that work — and each one has a specific place depending on your situation.
Strategy 1: The Revocable Living Trust
The revocable living trust is the most comprehensive tool available for probate avoidance, and it’s the one Tom Moss reaches for most often when clients have complex family situations.
A revocable living trust works by transferring ownership of your assets from your individual name to the trust’s name during your lifetime. You serve as your own trustee, which means you retain 100% control of your assets. You can buy, sell, invest, and manage everything exactly as you do now. The trust is also a “grantor trust” for tax purposes, which means you don’t file any additional tax returns — the IRS treats it as if it doesn’t exist during your lifetime.
The benefits of a trust extend well beyond just avoiding probate, though. Tom Moss highlights three distinct advantages:
Incapacity planning. If you become incapacitated, the successor trustee you named takes over management of your trust assets immediately — without any court involvement. This avoids the need for a court-ordered guardianship of your property, which can be just as expensive and time-consuming as probate itself.
Probate avoidance at death. When you pass away, your assets owned by the trust or payable to the trust transfer to your beneficiaries under the terms of the trust, entirely outside of court. No petition, no judge, no publication period.
Control over how assets are distributed. A trust lets you set conditions and timelines for how your beneficiaries receive their inheritance. Whether you have a child with a drug addiction, a special needs child who depends on government benefits, a minor child, or simply a spendthrift adult who isn’t great with money, the trust can be structured to protect them — and to keep distributing assets over time according to rules you set before you die.
Funding the Trust — The Step Most People Miss
Here’s where a lot of estate plans fall apart: creating a trust is only half the job. The other half is funding it.
Tom Moss is direct on this point: an unfunded trust is just a stack of papers.
For a trust to actually keep your assets out of probate, each asset has to be retitled in the trust’s name, or the trust has to be named as the beneficiary of that account. If an investment account at Merrill Lynch is still titled in your individual name when you die, it goes through probate — regardless of whether a perfectly drafted trust is sitting in a drawer at home. You paid for the trust, your family expects to avoid probate, and then it doesn’t work because the paperwork wasn’t completed.
The fix is straightforward, but it has to be done: transfer the title of each account and property into the trust, or update the beneficiary designations to name the trust.
One important exception: retirement accounts — IRAs, 401(k)s, and similar accounts — cannot be transferred into a trust during your lifetime. Doing so triggers a taxable event. Instead, those accounts avoid probate through beneficiary designations, which we’ll cover in Strategy 3.
Strategy 2: The Lady Bird Deed
For real estate, Florida offers a powerful and cost-effective probate avoidance tool called a lady bird deed — formally known as an Enhanced Life Estate Deed.
Here’s how it works: during your lifetime, you retain full ownership and control of the property. You can sell it, mortgage it, rent it, change the beneficiary, or even cancel the deed entirely. Nothing changes about how you use or manage your home. But when you die, the property passes directly to the person you named in the deed — with no probate required and no court involvement.
This is different from a traditional life estate deed, which strips away the owner’s right to sell or change beneficiaries. The “enhanced” version fixes that problem by preserving all of the owner’s rights during their lifetime while still naming a beneficiary for after death.
Tom Moss describes lady bird deeds as “vanilla ice cream” — simple, effective, and exactly right when the situation calls for it. For a straightforward scenario — say, a widowed parent who wants their home to pass to one capable adult child with no creditor or family conflict issues — a lady bird deed accomplishes the goal at a fraction of the cost of a full trust.
When a Lady Bird Deed Isn’t Enough
The vanilla ice cream analogy only holds when the situation is actually simple. Tom Moss is clear that when complexity enters the picture — a disabled child, siblings who don’t get along, creditor issues, or a child going through a divorce — a lady bird deed won’t cover it, and a trust becomes necessary.
One risk worth knowing: adding a child directly to a property deed as a joint owner to avoid probate might seem like an easy fix, but it creates a gift for Medicaid purposes. If you need nursing home care down the road, that transfer could count against you during the Medicaid lookback period. It also cuts the step-up in basis in half, potentially increasing your child’s capital gains tax exposure when they eventually sell.
It’s also worth noting that if there’s a mortgage on the property, any deed transfer — including a lady bird deed — may require the lender’s consent under the mortgage’s due-on-sale clause. This is something an experienced elder law attorney will flag and help you navigate.
Strategy 3: Beneficiary Designations and Ownership
The third strategy applies primarily to financial accounts, retirement assets, insurance policies, and annuities — and it can be the simplest tool of all when used in the right circumstances.
Most financial accounts offer a mechanism to name someone who will receive the funds directly when you die, bypassing probate entirely. The terminology varies by account type:
- Bank checking and savings accounts → POD (Payable on Death)
- Credit union accounts → TOD (Transfer on Death)
- Investment and brokerage accounts → TOD or beneficiary designation
- IRAs and 401(k)s → Primary and contingent beneficiary designations
- Life insurance policies → Primary and contingent beneficiary designations
- Annuities → Primary and contingent beneficiary designations
When the account owner dies, the beneficiary walks into the bank or financial institution with a death certificate, and the funds transfer directly. No probate, no court, no waiting.
Tom Moss uses his own retirement account as an example: his wife is the primary beneficiary, and the contingent beneficiary is a trust for his sons. That structure ensures the account avoids probate while also protecting his children’s inheritance according to his specific wishes.
The Limits of Beneficiary Designations
Beneficiary designations are a great tool, but they’re not right for every situation — and using them carelessly can create problems that are harder to fix than probate itself.
Special needs beneficiaries. If a beneficiary has a disability and receives government benefits, a direct inheritance can disqualify them from Medicaid or SSI. The solution is to name a special needs trust as the beneficiary instead, which receives the funds and administers them in a way that preserves eligibility.
Family conflict. When assets transfer directly through a beneficiary designation, there’s no fiduciary — no one responsible for making sure final expenses, taxes, and shared costs are covered. If a deceased parent’s two children inherit equal shares directly but one refuses to contribute to the final income tax return or funeral bill, the other has very little legal recourse.
Beneficiaries living abroad. Financial institutions typically require the beneficiary to appear in person to collect the funds. For a beneficiary living in Germany or Japan, that creates a real logistical problem — even if the designation was intended to simplify things.
Joint ownership with children. Adding a child as joint owner on an account or property does avoid probate, but it also exposes your assets to that child’s creditors. If your child is in a car accident and gets sued, your jointly held money could be on the line. Tom Moss generally steers clients away from joint ownership with children, preferring durable powers of attorney and beneficiary designations for that reason. Between spouses, tenancy by the entirety offers stronger protections and is a more appropriate form of joint ownership.
Choosing the Right Strategy — or the Right Combination
Most clients don’t need just one strategy. They need a plan that layers the right tools in the right places based on their specific assets and family situation.
Tom Moss walks through what that assessment looks like at Sawyer & Sawyer: the firm starts with a thorough intake process that maps out every asset — type, ownership structure, value, and any tax considerations. From there, the conversation turns to family: married or single, first marriage or subsequent, the number and ages of children, whether any family members have special needs or creditor issues, and how the relationships between heirs actually function in practice.
From that information, the right path becomes clear. For some clients, the right answer really is straightforward — a lady bird deed, a few beneficiary designations, and a durable power of attorney. For others, the complexity of their family situation makes a properly funded revocable trust the only tool that genuinely protects everyone. And for many, it’s a combination of all three strategies working together.
As Tom Moss puts it: “I’m not here to waste my client’s money. I’m here to do what’s best for my client based upon their particular situation.”
The bottom line is that probate avoidance isn’t a product — it’s a plan. And a plan that isn’t built around your specific circumstances isn’t really protecting you.
Common Mistakes That Leave Florida Families Exposed
Even people who’ve taken steps toward probate avoidance sometimes find out too late that their plan had gaps. A few of the most common mistakes Tom Moss sees in his practice:
- Creating a trust but not funding it. The trust exists, but the assets were never retitled. Probate happens anyway.
- Using joint ownership with children. Avoids probate but creates Medicaid exposure, capital gains consequences, and creditor risk.
- Naming a disabled beneficiary directly. The asset avoids probate, but the beneficiary loses government benefits as a result.
- Ignoring family dynamics. Direct beneficiary designations leave no mechanism for handling final taxes, bills, or shared costs when heirs don’t cooperate.
- Forgetting lender consent on mortgaged properties. A deed transfer without lender approval can trigger a due-on-sale clause.
Talk to a Florida Probate Avoidance Attorney Before It’s Too Late
Probate avoidance isn’t something to figure out on your own or put off until later. The strategies exist, they work, and they’re far less expensive than the alternative — but only when they’re implemented correctly and tailored to your actual situation.
Tom Moss and the team at Sawyer & Sawyer, P.A. help families throughout Orange, Lake, Osceola, and Seminole Counties — including Orlando, Windermere, Winter Garden, Winter Park, Dr. Phillips, and Horizon West — navigate estate planning, probate, elder law, and special needs planning with practical, personalized guidance.
Ready to protect what you’ve built?
Call Sawyer & Sawyer, P.A. at 407-909-1900 or schedule your consultation online at sawyerandsawyerpa.com/contact-us. The sooner your plan is in place, the more options you have.
