AN OVERVIEW GUIDE TO FLORIDA PROBATE
The details of a person's last will and testament represent final wishes to loved ones that often create a legacy. However, when a resident in Florida dies leaving a will, Florida probate is required to be opened to implement the provisions of the last will and testament. If a person dies with a will this is known as dying testate. Conversely, if a person dies without a will this is known as dying intestate. Whether someone dies testate or intestate going through Florida probate process is required under either case.
Here is an overview primer to important Florida probate rules, steps, costs, timelines, and deadlines of Florida probate process where we answer some of the most commonly asked questions about Florida probate administration process.
Let's dive right in.
Starting with the most common question of all,
1. WHAT IS PROBATE IN FLORIDA?
Florida Probate is a court-supervised legal process that distributes a deceased's estate among his or her beneficiaries after proving the validity of a last will and testament. In probate, the deceased individual is referred to as a decedent. The estate is everything a decedent owned or held in their name at the time of their death that does not have a payable-on-death provision, survival provision, or beneficiary designation. Beneficiaries are the persons named in the last will who are entitled to receive a decedent's estate. If the decedent died without a last will, the beneficiaries would be the intestate heirs of the decedent.
When probate is opened in Florida, the court appoints a personal representative (PR) to take over the administration of the estate. Usually, if the decedent died leaving a will, he or she names the person who will serve as the personal representative/executor.
In Florida, there are two main types of probate administration: formal and summary administration. Formal probate administration known as full administration is the traditional form of probate. When the total value of the estate subject to probate is worth more than $75, 000 and less than 2 years have passed since the decedent's death, formal administration of probate is required.
Florida Probate Code § 735.201 allows a petition for summary administration also called small estate proceedings to be filed only in two instances:
- when the value of the entire estate is less than the $75,000 threshold or
- when 2 years have passed since the decedent has passed away.
However, summary administration is not available where the last will specifically requires formal administrative proceedings.
Florida Probate Code § 735.301 creates a third form of probate administration called Disposition without Administration. Disposition without Administration is utilized to reimburse funeral expenses and final medical bills when the decedent's estate consists of only personal property of minimal value not subject to creditor claims.
2. SO, WHAT'S THE DIFFERENCE BETWEEN FORMAL AND SUMMARY ADMINISTRATION IN FLORIDA?
Unlike Florida summary administration, which is limited to administering smaller estates, in formal administration, the probate court appoints a personal representative, and issues letters of administration that authorize the personal representative to act on behalf of the estate in all legal and business matters. Formal administration is comparatively a lengthier process and can take up to more than a year to complete.
A summary administration in Florida is a more streamlined probate process that has a shorter time frame. Having no assets to administer, the distribution of assets by the probate court can occur quicker than a formal administration. Since summary administration does not require much documentation as in formal administration it is less complicated and cost-effective. A personal representative is not officially appointed, and no letters of administration are issued in summary administration. For this reason, summary administration is not a viable option when a personal representative needs to be appointed to administer a larger estate with many known creditors. Unless it is contested, summary administration can ideally take up to 3 to 6 months to complete.
3. IS PROBATE ALWAYS REQUIRED?
The short answer is it depends- if for instance, a person dies in Florida owning assets for instance a house, bank accounts, vacant land, retirement accounts, or other assets which are held solely in their name or assets which do not have beneficiaries or pay on death designation at the time of their death, then probate is certainly required. In most cases, unless a deceased person created a revocable living trust or otherwise, probate will be required to distribute the deceased person's assets to their beneficiaries or heirs at law.
4. WHAT IS THE PROBATE PROCESS IN FLORIDA?
The Florida probate process for a full administration begins with the filing of a Petition for Administration along with supporting documents including the last will and death certificate of the deceased. The last will and testament must be filed with the court within 10 days from the date of death of the deceased. After probate is opened, the court validates the last will and testament. The will must be validated before assets can be distributed among beneficiaries. Once the will is admitted, the probate court will issue letters of administration, formally appointing a personal representative or an executor for the estate. Then the court will proceed to identify the rightful beneficiaries who are entitled to receive the property.
The estate's personal representative must publish a notice to creditors to notify them of the probate proceedings and creditors will have up to 90 days from the notice to file claims against the estate. It becomes the responsibility of the personal representative to identify, collect and make an inventory of all the estate assets subject to probate. After taxes and debts to legitimate creditors are paid out of the deceased's estate, the personal representative will file an accounting notice. Interested parties have up to 30 days to dispute the findings in the accounting notice. If the accounting notice is uncontested, the remaining assets will be distributed among the beneficiaries. Within a year of the distribution of assets, the personal representative must file distribution receipts with the probate court. Once the personal representative's application for the estate's closure is granted, the probate process officially ends.
5. WHAT HAPPENS WHEN SOMEONE DIES WITHOUT A WILL?
If someone dies without a will, in the eyes of the law he or she is deemed to have died intestate. A person's property/assets who dies intestate will pass to their descendants/relatives through Florida's law of intestacy. The Florida intestacy laws will dictate how a person's property must be distributed if they died without a will among their relatives. If there are no living relatives such as surviving spouse, children, parents, siblings, or other blood relatives, then and only then the intestacy estate will pass on to the State of Florida through a process called escheatment in accordance with Florida Probate Code § 732.107.
6. HOW MUCH DOES PROBATE COST?
The cost to probate an estate in Florida varies depending on the size and complexity of the deceased's estate and the type of estate administration. Costs typically include court filing fees and in a formal administration can also include executor fees, costs for publishing legal notices to creditors, and accounting and appraisal fees, in addition to attorney's fees which can either be a percentage of the estate based on the compensable value of probate assets or a flat fee. For this reason, it is best to consult a Florida probate attorney who can explain the probate administration process and best navigate you through it to save you time and resources.
NEED HELP WITH PROBATING AN ESTATE IN FLORIDA? LET US HELP.
Court administrative processes can be complicated and confusing, do not dare do it alone. Florida probate process can be complex and foreign to many people who are non-lawyers. Simple mistakes can create unnecessary delays and additional costs in the distribution of probate assets. Even the simplest and the most straightforward cases often require a Florida probate attorney to guide estate personal representatives and beneficiaries through tight timelines, filing of notices, and other specifics of the Florida probate process. We are here to help navigate you through the probate process. Contact our office at 954-302-8989 for a consultation.