To anyone unfamiliar with probate, or how probate administration in Florida works, this area of law can be confusing and complex.
Probate in Florida is the legal process of gathering up and disposing of a decedent’s property. When a person dies, his or her property gets distributed to his or her heirs through probate. Probate in Florida is the legal process—overseen by the court—that ultimately transfers a decedent’s property to his heirs.
Depending on whether the decedent died testate (i.e., with a Last Will and Testament (“Will”) in place), or intestate (without a Will), different rules will apply to the distribution of his property.
If the decedent died testate, then, as long as the Will is valid, the court will follow the terms of the Will as closely as possible.
If, on the other hand, the decedent died intestate, then probate in Florida will follow the statutory intestacy laws to determine who will get the decedent’s property and in what amount.
In addition to the different rules that apply according to whether or not the decedent had a Will, probate in Florida can be either formal or informal. Each one of these types of probate in Florida has its own procedures, rules, and requirements. Which is why it is best to always work with an experienced Florida probate attorney if you need to conduct a probate in Florida.
We will take a closer look at formal and informal probate in Florida shortly. First it is necessary to understand a little bit about probate in Florida and how it works.
Property that Passes through Probate in Florida
Before we get into the details of formal vs. informal probate, there are some basics about probate in Florida that need to be understood.
First, people often confuse having a Will with not having to go through probate at all. That’s not how it works.
If you have a Will, your estate will still have to go through the expensive and time-consuming process of probate in Florida and the Will itself must be submitted to probate. This is because it is the job of the probate judge to ascertain whether the Will is valid and enforceable. If it is, then the estate can be administered according to the terms of the Will.
Next, it should be made clear that not all property passes through probate.
Property that goes through probate in Florida consists of assets that were owned by the decedent, in his own name only. So, jointly-owned property, property with a right of survivorship, or property not solely in decedent’s name, will not pass through probate.
Also, any assets that are titled in the name of a revocable living trust will not pass through probate in Florida.
Additionally, assets that have a named beneficiary (like insurance policies) will not pass through probate. Whether or not an asset goes through probate in Florida turns on how it was owned at the time of the decedent’s death.
Examples of the most common types of property that go through probate are financial accounts, businesses and real estate titled in the decedent’s name only.
With regard to decedent’s property that passes through probate, there are two main types of court-supervised probate administration in Florida. They are:
- formal administration, and
- summary administration (also known as “informal administration”).
Formal administration and summary administration are the two main types of probate in Florida, but they are not the only types of probate available.
There is also a very simplified proceeding called “Disposition of Personal Property Without Administration.” This type of probate, however, is far less common and applies only in very limited circumstances.
Finally, keep in mind that while state law governs probate in Florida, each county has its own specific rules that must be met before a case can proceed. Having the assistance of a probate lawyer makes navigating all of these laws far easier.
By far the more commonly used probate process, formal administration is the court-supervised administration of a decedent’s estate.
Formal administration (at times referred to herein as “formal probate”) is just what it sounds like: a formal proceeding that requires strict compliance with deadlines, rules, and procedures.
Any estate that has non-exempt assets that exceed $75,000 must go through formal administration. Also, if the decedent has been dead for less than 2 years, and the estate has non-exempt assets that exceed $75,000, formal probate will be required. Formal administration can also be necessary when circumstances require the appointment of a personal representative to handle certain issues on behalf of the estate. This can be situations like filing a lawsuit on behalf of an estate or contract issues that must be dealt with, etc.
Formal administration is more costly and more time-consuming than summary administration. Yet it applies to the majority of estates. And it tends to be the procedure most often used to administer a decedent’s estate.
Assuming there are no complications with regard to the appointment of the personal representative, after the court issues Letters of Administration, formal probate in Florida proceeds through several steps. These include, (but are not limited to):
- Locating and notifying all heirs and beneficiaries
- Gathering all estate assets
- Preparing an inventory
- Paying all debts and taxes, and
- Submitting a final accounting to the court
- Distributing all assets to beneficiaries
Each one of these steps can take time and may be subject to complications—which can lead to more time and expense for the estate.
One of the purposes of probate in Florida is to pay all of the estate’s debts, funeral costs, taxes, and probate proceeding costs before distributing a decedent’s assets to his or her heirs. How the debts of an estate are handled depends on whether the type of probate administration is formal or informal. In formal administration, the personal representative is responsible for diligently searching for and notifying all creditors of the estate of the decedent’s passing. The “notice to creditors” must be filed in compliance with all statutory requirements and deadlines. Creditors have a limited time (90 days) to file a claim against the estate.
After all assets have been located and each one of the steps listed above have been satisfactorily completed and everything has been distributed, the personal representative must file evidence of the same with the court and must ask that the estate be closed. If the court finds that there is nothing more to be done, it will issue an order closing the estate and relieving the personal representative of his or her responsibilities.
Assuming there are no complications (for example, a will contest) and that everything goes smoothly, formal probate can take up to one year or more to complete, depending on the complexity of the estate.
Probate in Florida can be complex and confusing. To learn more, speak to an experienced Florida probate lawyer.
In probate in Florida, summary administration is a shortened version of full probate. Summary administration is available to estates that are considered to be “small estates.” These are estates with non-exempt assets worth less than $75,000.
Summary administration is also available— regardless of the value of the estate—where the decedent has been dead for more than 2 years.
Summary administration is not available if the decedent’s Will directs that a formal administration be used.
Unlike formal administration, summary administration does not require the appointment of a personal representative.
Also, while you should seriously consider hiring probate counsel to assist you, summary probate in Florida does not require that you have an attorney to file for summary administration.
While summary administration may be faster and less expensive than formal administration, it does have its drawbacks. For example, unless a “notice to creditors” is properly published and/or served on all creditors, beneficiaries can remain liable to claims against the decedent for up to two (2) years.
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