When a person dies, his or her property gets distributed to his or her heirs through probate. Probate is the legal process used to transfer a decedent’s property either according to his* Will (“Last Will and Testament”) if he has one, or the laws of intestacy if he does not. Broadly speaking, in Florida, probate can be either formal or informal.
In today’s post, we will take a brief look at some of the differences between formal probate and informal probate.
Property that passes through probate
Before we get into the details of formal vs. informal probate, it is important to understand that not all of a decedent’s property will pass through probate.
For example, property that has a named beneficiary (like an insurance policy), or that is not owned solely in decedent’s name (for example, jointly-owned property or property with a right of survivorship), or property that is held in a trust, will not pass through probate.
As to decedent’s property that does pass through probate, however, there are two main types of court-supervised probate administration provided for by Florida law: formal administration and summary administration.
In Florida, summary administration is a shortened version of full probate. Summary administration does not require the appointment of a personal representative.
There are many things to know about summary administration. One important one, however, is that it cannot be used if decedent’s Will directs that formal administration be used.
Also, before summary administration can apply to an estate, certain criteria must be met. These are that:
- Decedent must have been dead for more than two years, or
- The value of the entire estate subject to probate in Florida, minus the value of property exempt from claims of creditors, does not exceed $75,000.
In other words, summary administration applies to small estates.
By far the more commonly used probate process, formal probate is the court-supervised administration of a decedent’s estate.
The process begins (assuming that decedent has a Will and that his or her property has not been placed into a trust), when the executor (or other interested party) petitions the court to be appointed as personal representative of the estate.
After the court issues Letters of Administration, formal probate 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
Once everything has been distributed, the personal representative must file evidence of that 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 extent of the estate.
Probate in Florida can be complex and confusing. To learn more, speak to an experienced trusts and estates counsel.
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 Please note that the use of the male gender is simply for ease of reading to avoid saying “his or her” repeatedly.