When a person dies and their assets need to be distributed to their heirs, that is done through the process of probate. In Florida, there are four different ways that probates are administered. Which is right depends on circumstances such as the size of the estate, the length of time the person has been deceased, and where the person was living when they died.
Each of these types of probate proceedings have some common elements, but others are unique.
All probates go through these four stages:
- Ensure that the person’s Last Will and Testament (Will) was done according to Florida law (assuming there is one).
- Gather and document the decedent’s assets, which includes real estate, bank accounts, stock portfolios, cars, valuable artwork, pricey jewelry, and other items in their name.
- Reach out to creditors and pay the decedent’s outstanding debts, including their final hospital and funeral expenses.
- Distribute remaining assets to the beneficiaries according to the decedent’s wishes and state law.
Don’t spend time searching online for a “probate attorney near me.” The Law Office of Gary M. Landau, P.A. has decades of experience probating estates of all sizes throughout the state of Florida. We can assist you with any questions you might have regarding probate administration.
#1 Formal Administration
When the decedent’s probatable assets exceed $75,000 (including their share of non-homestead real estate in Florida or elsewhere), and the probate is being done within 2 years of the person’s death, a formal administration is required.
Probatable assets are not the same as general assets. Many assets don’t need to go through probate and so don’t count in this determination. Some exempt assets include real estate jointly owned with another person, shared bank accounts, assets in a living trust controlled by the decedent, and life insurance with a named beneficiary.
Formal administrations are the most comprehensive Florida probates and generally take months to complete, even longer if the estate is complex or is large enough to require the payment of federal estate taxes. Hiring an experienced Florida probate attorney is the best way to ensure your formal administration is discharged smoothly.
#2 Summary Administration
A summary administration is a shortened form of probate. It can be used if the decedent died more than two years prior to the filing of the probate or if the total value of their property (excluding non-probatable assets) is less than $75,000.
A summary administration typically takes less time and involves fewer costs than a formal administration.
In a summary administration, legal documents known as a “petition” are filed with the court, outlining all of the estate assets along with the plan for distributing the assets to each beneficiary according to the wishes of the decedent in their Will.
If the probate court finds the petition to be in proper order, it will approve the plan and the assets can quickly be distributed.
#3 Ancillary Administration
When the person who died was a resident of another state but owned property in Florida, an ancillary administration is sufficient. That’s because the primary probate process occurs in the state where the decedent lived. The ancillary administration is done only for the assets located in Florida, such as a second home.
An ancillary administration is generally completed without the requirement for beneficiaries or the personal representative to travel to Florida.
After the probate is filed in the state where the owner resided, a Florida probate lawyer opens the ancillary probate. This is done by filing an authenticated copy of the Will, the death certificate, the primary probate filing, and other documents.
Not all second homes or other Florida property require an ancillary probate. For example, if property is owned in title with another person as a “joint tenant with right of survivorship” or if it is placed inside a revocable living trust, it would not need to go through probate.
#4 Disposition Without Administration
Disposition Without Administration, also known as a Disposition of Personal Property Without Administration or even as a Small Estate Proceeding, is a process for distributing the very small amount of assets of a deceased person without any probate process. There are limited circumstances where this type of administration can be used, and therefore it is rarely filed.
Say a person died with a small sum of money in their possession. But they also have medical bills from the last 60 days of their life along with funeral expenses, which together exceed that amount of money. The heirs want to use the deceased’s estate to pay these bills, but going through a summary administration would involve time and costs that don’t make sense in this situation, because there would be nothing left over for them to inherit.
When determining how much money the deceased person had, items like personal furniture or automobiles are not counted. Nearly all other assets are valued, however, which is why in most cases another type of probate, especially a summary administration or formal administration, is required.
Do You Need to Hire an Attorney for Disposition Without Administration?
In most cases, an attorney is not necessary for this very limited type of probate. A family member can generally file this by obtaining and submitting a form to the court, along with a court fee of several hundred dollars, plus:
- A certified copy of the death certificate
- The Last Will and Testament (if one exists)
- A copy of the hospital and funeral home bills (even if the latter was initially paid by someone else)
- Copies of the person’s assets, including bank statements, stock accounts, insurance checks, real estate, and others.
Once the probate judge has reviewed these items, he or she will issue an Order for Payment of Funds. This order is given to the person’s bank or other asset holders to initiate the transfer of assets to pay their end-of-life bills.
The Three Stages to Probating an Estate in Florida
Most estates in Florida are handled as formal or summary administrations. Each of these involve the following 3 stages:
Opening the Estate for Probate in Florida. The personal representative or other heir hires a probate attorney. Working together, the team gathers all necessary information and documents, including a certified death certificate and the person’s Last Will and Testament (if they have one) and files a Petition for Administration in the Florida Probate Court.
The court assigns a case number and the estate is considered “opened.” The judge reviews the files and issues Letters of Administration naming the personal representative as the estate’s official representative.
Administering the Probate Estate. This is the most time-consuming step. The personal representative must locate all the assets in order to perform an inventory for the courts. Creditors must also be notified, including by publishing a notice of death, and they have 90 days to file a claim (which the estate can challenge if they do not think the claim is justified).
During this process, the personal representative is responsible for paying the person’s ongoing expenses, such as a home mortgage or maintenance fees, car payments, and the like. This is generally done from a special estate bank account opened with the letters of administration.
If the estate is large enough to trigger federal taxes, they must be calculated and paid.
Once all creditors have been satisfied and all heirs identified, the estate is ready to be closed.
Closing the Probate Estate. The probate attorney files a petition with the court to close the estate, and the judge signs a Discharge Order. This releases the personal representative of their duties. All of the remaining assets can now be distributed to the individual’s heirs according to the terms of the Will and/or Florida law.
Contact the Law Office of Gary M. Landau, P.A. to Discuss Your Florida Probate
A knowledgeable probate lawyer can ensure that the right type of probate administration is done and that all steps of the probate process are performed efficiently and properly.
The Law Office of Gary M. Landau, P.A., has over 25 years of experience with probates and other legal services. Clients in Broward and South Palm Beach Counties can come to our offices in Coral Springs, but the Law Office handles probates everywhere in the state of Florida and has filed probates in nearly every county in the state.
To learn more about the type of probate that is right for your loved one’s estate, and to understand the legal and court fees involved, call our office at (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We can work with you in person, over the phone, or on Zoom.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.
LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/