James W. Martin Trusts and Estates Law Blog on Lawyers.com
When Does a Trust Avoid Probate in Florida: Almost Never
Saturday, August 15, 2009 by James W. Martin
People often create revocable living trusts in Florida to avoid probate. And some of those people actually transfer assets into the trust to fund it. And it’s true that the trust’s assets are not assets of the probate estate when the person dies. But probate is still required for another reason: clearing possible claims of creditors.
You see, in Florida, revocable living trusts are liable for the claims of creditors of the probate estate. In addition, creditors have two years to file claims if there is no probate proceeding. The probate proceeding claims process reduces the time to file claims to just 3 months after notice to creditors is published. That’s why a trust almost never avoids probate in Florida. There is no creditor claims process for trusts, but there is one for probate.
If a trustee ignores this, the trustee could be liable to creditors after distributing the trust. That’s why wise trustees always file a probate proceeding even if the trust is fully funded with all the assets the decedent owned at death.
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