What Is Probate & How to Avoid It — with Attorney Andy Rosenberg

by Andrew Rosenberg | Jul 28, 2025 | Estate Planning

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What is probate, and why does it exist?

Andy Rosenberg, a Florida estate planning attorney, explained that probate is simply a court-supervised legal process for transferring assets after someone dies. When a person passes away with assets in their name only—without joint ownership or beneficiary designations—the court must step in to determine how those assets are distributed. This process ensures legal authority to transfer ownership and is required in many cases to protect the deceased’s estate.

Is probate a straightforward process?

While it may sound simple, Andy emphasized that probate is not always straightforward. The process is heavily form-driven and becomes complicated when dealing with family dynamics, creditors, or unique estate issues. Although his office handles probate matters daily, complications often arise due to interpersonal conflicts or missing documentation.

How does the probate process work in Florida?

Andy described the Florida probate process as having a clear beginning, middle, and end:

  • Beginning: Paperwork is signed and submitted to the court. If no will exists, the person is considered to have died intestate, requiring a certified death certificate and issuance of Letters of Administration, appointing a Personal Representative (executor).
  • Middle: The representative must publish notice in a local newspaper and wait 3 months for any creditor claims. During this time, they liquidate assets, open an estate bank account, and manage the estate.
  • End: Creditors are paid, assets are distributed to beneficiaries, and a Petition for Discharge is filed. Once the court issues an Order of Discharge, the probate case is closed.

How long does probate typically take?

On average, probate in Florida takes 15 months or more, though summary administration for smaller estates under $75,000 may take just 1–2 months. Most estates, however, go through formal administration, which is longer due to court delays, client responsiveness, and document processing.

What factors cause probate delays?

Delays often result from:

  • Overwhelmed courts in South Florida counties (Broward, Palm Beach, Miami-Dade)
  • Holidays, vacations, and emergencies affecting judges
  • Clients taking too long to review and sign legal documents
  • Incomplete or incorrect paperwork

Andy advised families to act quickly when legal documents are provided to minimize unnecessary delays.

Can families avoid probate entirely?

Yes, Andy outlined multiple strategies to avoid probate, including:

  • Proper asset titling (e.g., joint tenancy with rights of survivorship)
  • Using beneficiary designations on accounts like IRAs, 401(k)s, annuities, and life insurance
  • Creating revocable living trusts to hold and manage assets outside of probate

He emphasized that probate only applies to assets held in a decedent’s name alone without a beneficiary.

What are common probate mistakes?

According to Andy, common mistakes include:

  • Not naming contingent beneficiaries on retirement accounts
  • Failing to title property correctly
  • Using online templates or DIY estate plans without legal oversight

These oversights can result in assets unintentionally going through probate court.

What is the difference between probate court and guardianship court?

Probate court handles matters related to death and asset distribution. In contrast, guardianship court addresses situations where someone becomes incapacitated or disabled without the proper legal documents. Andy cited the example of Britney Spears, whose guardianship (conservatorship in California) became a public controversy due to the lack of proper legal safeguards.

What is the first step to avoiding probate in Florida?

Andy’s #1 recommendation is to consult an experienced estate planning attorney. Clients should bring copies of all financial documents—account statements, real estate titles, and insurance policies—so the attorney can review asset titling and determine what would go through probate. Legal professionals can then design a customized strategy to minimize probate exposure and ensure a smooth transfer of assets.

Why is it important to work with a qualified estate planning attorney?

Andy strongly warned against relying on DIY tools or unqualified professionals. Estate planning is too critical to leave to chance. A qualified attorney ensures documents are legally sound, beneficiaries are properly named, and assets are structured to avoid probate and protect a family's legacy.

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