PROBATE

Probate in Florida is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to the decedent’s beneficiaries. The procedure of admitting a will to probate and appointing a personal representative plus the estate administration itself are often referred to collectively as the probate process.

There are various types of probate in Florida and the proper type of probate depends on:

• The decedent’s estate plan.
• The decedent’s assets at death and how they are titled.
• The decedent’s residency or domicile at death.
• The value of the decedent’s probate estate.

It is important understand the various options for estate and probate administration and their respective requirements whether you are a client in the estate planning process, a fiduciary in the estate administration process, or a beneficiary of an estate. Failure to understand the rules can lead to an estate plan that does not achieve the desired objectives, a breach of fiduciary duty by the personal representative, or a disadvantage to the estate or a beneficiary of the estate.

The Florida Probate Code can be found in the Florida Statutes Chapter 731 through Chapter 735, and the rules governing Florida probate proceedings are found in the Florida Probate Rules Part I and Part II.

In Florida, the main types of probate proceedings and processes are:

• Formal administration
• Summary administration; and
• Ancillary administration

FORMAL ADMINISTRATION

Formal estate administration is the most common form of probate in Florida. In a formal administration, the court oversees the process of identifying and gathering the assets of the decedent, paying the decedent’s debts, and distributing assets to the beneficiaries. The process of formal administration includes timely depositing the will, filing the petition for administration, and requesting that letters of administration be issued to a personal representative. Formal administrations are only necessary for estates valued at over $75,000 or with claims of creditors.

Our probate attorneys can help you ensure that the personal representative requesting appointment, whether nominated in the will or otherwise is qualified to act in Florida and has priority to act.

Additional steps in the probate process include: providing the relevant notices to beneficiaries, heirs, and other interested parties, determining whether the surviving spouse or children, if any, have any rights to exempt property, a family allowance, an elective or pretermitted spouse’s share or a pretermitted child’s share and filing the required elections or petitions regarding those rights, providing notice to creditors preparing and serving an estate inventory, administering the estate by collecting the decedent’s probate assets and re-titling them in the name of the estate, paying the taxes and expenses of administration, objecting to invalid creditor claims and paying valid creditor claims and distributing the estate assets to the decedent’s beneficiaries or heirs.

The final step in the probate process is filing a final accounting and petition for discharge or waivers of the final account and petition for discharge.

SUMMARY ADMINISTRATION

Summary administration is another common type of probate proceeding in Florida. Summary administration is appropriate when an estate is valued at $75,000 or less or when the decedent has been dead for more than two years.

As mentioned above, probate in Florida is a court process used to gather and identify the assets of a deceased person and pay their debts if any. Probate is also used to distribute the assets of the decedents to the beneficiaries. Summary administration allows for a quicker probate process than full administration.

Summary administration can be sought in the county where the decedent was domiciled. Once the decedents domicile is determined, the summary administration probate process can begin with the filing of a Petition for Summary Administration. The petitioner can be any estate beneficiary, or any person nominated as a personal representative in the decedent’s will.

The procedure for a summary administration is the same whether or not the decedent died with a will. The only difference is that if the decedents did die with a will, the petitioner must prove the will as in a formal administration. If there are any creditors and their claims are not already barred by the passing of the two years, the petitioner must make a reasonable effort to identify the creditors and serve them with a cope of the petition for summary administration. If there are creditors, the petitioner must pay all claims before the court will enter an order of summary administration.

If all conditions are met, the court may enter an order allowing for the immediate distribution of estate assets to the beneficiaries.

ANCILLARY ADMINISTRATION

Ancillary administration is a final type of common probate proceeding in Florida which is used if a non-resident dies leaving Florida property.

An ancillary probate proceeding in Florida may be necessary if the at the time of the decedent’s death, they were not a Florida resident and they died leaving assets in Florida, credits due from Florida residents, or liens on Florida property.

If the decedent owns real property in Florida and they are a non-resident, then an ancillary administration must be opened. Florida probate courts will apply Florida law when probating and ancillary administration over real property situated in Florida.

There are ways to easily avoid the necessity of an ancillary administration such as putting the Florida property into a trust, or titling the property with rights of survivorship. Under the former of the these methods, title to the property passes by operation of law and so no probate proceeding is necessary.