Good estate planning helps you to avoid probate.
Probate in Florida is the time-consuming and expensive court process that oversees the distribution of a decedent’s estate. It is the legal process that is used to transfer a decedent’s property to his heirs.
Probate in Florida consists of locating and gaining access to all of a decedent’s assets, inventorying those assets, paying all debts of the estate, and finally distributing the remaining assets to the decedent’s heirs and beneficiaries.
The rules and procedures that are used to probate a decedent’s estate depend, in part, on whether the decedent died testate (i.e., with a Last Will and Testament (“Will”) in place), or intestate (without a Will).
If the decedent had a valid Will in place when he or she died, the probate court will follow the terms of that Will as closely as possible when distributing a decedent’s estate.
In contrast, if the decedent did not have a Will but died “intestate,” then the court will apply Florida’s statutory intestacy laws to determine which of decedent’s heirs will get his property and in what amount(s).
In addition to whether a decedent died “testate” or “intestate,” the administration of a decedent’s estate turns on the type of probate being used.
As will be discussed in more detail below, Florida has 3 types of probate that can be used to administer an estate. Each one has its own specific requirements, rules, and procedures. Consulting an experienced Florida probate attorney can help you to determine which type of probate is best for the administration of your estate.
Many people find it confusing that having a Will does not mean your estate can avoid probate entirely. To make sense of this, it may be helpful to keep in mind that the
Florida court must oversee the distribution of the property of every Florida decedent. A Will assists the court in distributing that property because it tells the court what the decedent’s wishes were. It does not, however, completely obviate the need for court supervision of the probate process. Rather, it is the court’s job to make sure that the Will is valid. If it is, the court will follow the decedent’s wishes as outlined in the Wil. Thus, having a valid Will makes the administration of an estate less expensive and time-consuming than when there is no Will and the court must apply the laws of intestacy to administer an estate.
Avoiding probate allows a decedent’s estate to pass to his heirs directly and without exorbitant court fees and costs. This is achieved by working with an experienced estate planning attorney and making sure that you have various estate planning tools, like a Will and revocable living trust, in place before it’s too late.
Before we discuss the three types of probate in Florida, let’s take a brief look at the history of probate and what types of property pass through probate.
A Brief Look Back in Time: The History of Probate in the United States
Probate in the United States grew out of the doctrines and workings of the English ecclesiastical courts.
Before the Norman Conquest, a dying man would generally make his Will (i.e., Last Will and Testament) on his deathbed. The dying man would tell the priest hearing his last confession how he wanted his property disposed of. At that time, however, regardless of the dead man’s wishes, generally a portion of his property might go to his wife, and some to his children (if he had any), but a portion of it would certainly go to the church.
How a man’s property was divided up was left to either the priest who presided at the deathbed, or to family, or even to friends who had attended his death. In those days, there was no executor (or personal representative), and no formal process for disposing of a man’s goods.
The probate court in the United States grew out of the ecclesiastical courts—which were responsible for one’s spiritual well-being, and the Common Law Courts—the courts where a deceased’s creditors would go to sue for what they were owed. Eventually, the Probate Court and the Orphan’s Court were developed by the colonists in North America to handle the distribution of a decedent’s estate.
Recent history has seen the merging of the probate court with other courts—reducing the probate court’s jurisdiction and eliminating its specialization.
Not All Property Will Pass Through Probate in Florida.
As mentioned above, when a decedent dies, before his property can be distributed, his estate must be probated.
A probate estate is made up of the decedent’s tangible and intangible assets. Importantly, not all property owned by a decedent will pass through probate.
The only property that goes through probate in Florida consists of property owned by the decedent in his name only. That means that the following types of property will not pass through probate:
- jointly-owned property
- property with a right of survivorship
- property not solely in decedent’s name
Further, assets titled in the name of a Revocable Living Trust (“trust”) do not pass through probate in Florida. This is because at the time of a decedent’s death, any assets in the trust belong to the trustee (or substitute trustee) of the trust.
As you can see, whether or not an asset passes through probate in Florida turns on how it was owned at the time of the decedent’s death.
Some examples of the most common types of property that go through probate include:
- bank accounts
- personal property
- real estate titled in decedent’s name only
For property that does pass through probate in Florida, there are 3 types of probate administration available. The two most frequently used types of administration are supervised by the court. The third type is a non-court supervised administration that is rarely used because it applies in only very limited circumstances.
In addition to state law governing probate in Florida, every county in the state has its own specific rules that must be complied with to probate an estate. The assistance of a probate lawyer will ensure that you choose the right type of probate administration and that you comply with all applicable laws.
3 Types of Probate in Florida
Florida currently has 3 types of probate administration.
- Formal Administration
Formal administration is one of the most frequently used types of estate administration in Florida.
As you might expect, formal administration is the formal process of administering a probate estate.
Formal administration commenced by submitting a formal petition to the court. During the process, a “notice to creditors” will be sent out to notify all creditors of the estate of the administration of the estate. The process can take anywhere from 6-12 months to complete—depending on the extent of the decedent’s assets and how complex the estate is.
The only estate assets that will be a part of the formal administration process are those making up decedent’s “probate estate.” In other words, only property held in decedent’s name alone will be part of the formal administration. Any property that is joint property or that passes directly to a beneficiary or is held in a trust will not be part of the formal Administration.
All estates—even those without assets—are eligible for formal probate and in certain circumstances (for example, to file a lawsuit on behalf of the estate) this may be advisable to do. However, formal administration is required when:
- the estate has non-exempt assets that exceed $75,000, and
- decedent has been dead for less than 2 years.
In Florida, most estates meet this requirement. As a result, formal administration tends to be the most common type of administration used.
One of the first things the court will do in the formal administration process is appoint a “personal representative” (referred to in most other states as an “executor” or “administrator”). Although a decedent’s Will may name someone as his personal representative, that person has no legal authority to act until he is appointed by the court and Letters of Administration issue.
After appointing a personal representative, the formal process will include (may not be limited to) some of the following steps:
- Beneficiary notification (i.e., locating and notifying all heirs and beneficiaries)
- Marshalling all assets
- Preparing an inventory
- Payment of all estate debts and taxes
- Final accounting
- Final distribution of all assets
It can take time to complete each one of these steps and any number of issues can come up to derail or interrupt the smooth administration of an estate. If you are the personal representative, hiring an experienced Florida probate lawyer to assist you in navigating the process is not only required by law in Florida for formal administration, it is the smart thing to do.
2. Summary Administration
The second type of probate administration available in Florida is summary administration. This process is generally faster and less expensive than formal administration.
But summary administration has its limits.
First, it is not available to all estates. To qualify for summary administration, an estate must be a “small estate.” This means the estate’s assets must be valued at less than $75,000.
On the other hand, if the decedent has been dead for more than 2 years, summary administration is available without regard to the value of the estate.
Another limitation is that summary administration is not available if decedent’s Will indicates that formal administration should be used.
You need not hire a Florida probate lawyer to assist you in conducting a summary administration, but it is advisable to do so as the probate laws are complex and can be confusing. Plus, failure to follow the rules to the letter can cause problems. For example, if a “notice to creditors” is not properly published and served on all creditors, beneficiaries can remain liable to claims against the decedent for up to two (2) years.
Your best bet is to enlist the help of an experienced estate and probate lawyer.
3. Disposition of Personal Property Without Administration
The third type of probate administration is a non-court supervised proceeding known as “Disposition of Personal Property Without Administration.”
This proceeding is rarely used because it applies in only very limited circumstances.
Administration of an estate is not required when the only property the decedent left was personal property that is exempt by law, and the value of that property is not more than decedent’s funeral costs and costs related to his or her last illness.
In other words, “disposition of personal property without administration” is a procedure whereby an heir or beneficiary can be reimbursed for paying a decedent’s final expenses.
Administration of an estate can be a difficult, confusing, and overwhelming process. Let our experienced Florida estate and probate lawyers help you navigate the Florida probate administration system with ease.
Protecting Your Family is Just a Phone Call Away.
At SJF Law Group, we expertly guide individuals through the complex probate process and capably handle all aspects of the creation, administration, and settlement of trusts as well. When you work with the estate planning attorneys at SJF Law Group, you get more than just an estate plan: you get peace of mind. Call us at 954-466-0842 or email us at: [email protected] today.