KNOWLEDGE, AND COMPASSION WHEN HIRING AN ATTORNEY.
DAVID A. SILVERSTONE
FLORIDA PROBATE AND ESTATES LAWYER.
Florida Probate Estates
What is probate?
Probate Administration (also referred to as “probate”) is a court proceeding in which a judge enters orders which transfer title to a deceased person’s property to their heirs or beneficiaries.
If there is no will, then the property passes to the decedent’s heirs in the order given in Florida’s intestacy statute.
Why do I need to open a probate estate if there is a Will?
A will is a statement of instructions from a decedent as to what is to be done with his assets when he or she dies. The will must be filed with the court, and a probate estate must be opened in order to transfer the property to the persons named in the will.
The same is not true of bank accounts, IRA’s, mutual funds, life insurance, trusts, or any asset which names a beneficiary payable at death.
These are all “probate alternatives”, needing nothing more than a death certificate, valid ID, and the completion of some paperwork in order to transfer assets at death. These assets pass “outside of probate”, directly to the named beneficiaries. If a person has only assets with beneficiaries, then there may be no reason to open a probate estate at all.
Types of Probate Administration in Florida
Formal Administration is the typical “long form” estate which is mandatory for estates with more than $75,000.00 in non-exempt property. Formal administration has several steps, and takes a minimum of 5 to 6 months to complete, although it can take longer, depending on the circumstances. A personal representative (known in other jurisdictions as an “executor” or “administrator”) is appointed by the court to act on behalf of the Estate. The personal representative has power to access bank accounts, sell real or personal property, hire attorneys and accountants, and do anything necessary to effectively administer the estate. With all that power comes responsibility.
A personal representative is a “fiduciary”, having the highest level of trust to act in the best interests of the beneficiaries, creditors, and all persons involved with the estate. Personal representative is a job to be taken seriously. Florida statutes allow a personal representative to be compensated for their services from the estate. A personal representative must be represented by an attorney.
A summary administration is a simplified form of probate administration. In order to file a probate as a summary administration, the value of the decedent’s non-exempt property must be valued at $75,000.00 or less; OR the decedent must have been dead for more than two years, regardless of the value of the property.
Please note that in Florida a persons’s primary residence, called “homestead”, is EXEMPT property for probate purposes, and therefore it is NOT included in calculating the value of an estate. A person can die with a home worth $300,000.00, and $75,000.00 in a bank account, and still qualify for summary administration, if that home was their homestead.
Summary administration is a less complicated procedure than formal administration. There is no personal representative. There are fewer documents which must be filed, and is a much shorter process than formal administration.
Although the law does not require a the hiring of lawyer for a summary administration, it is best to have one, since the process can be confusing and burdensome for someone who is not accustomed to doing them.
A decedent who is a resident of another state or country may have assets in Florida, such as a summer home. Probate is first opened in the state or country in which they resided. However, if they owned property in Florida, a separate probate must be opened in Florida, which is called “ancillary administration”. Certified copies of the probate documents from the other state or country are filed in Florida, and a new Florida probate estate is opened.
The Florida probate continues in the same manner as a normal Florida probate estate (Either by Formal Administration, or, if it qualifies, by Summary Administration).
Creditor’s claims in probate:
Probate includes not just passing property to decedents or heirs. The debts of the decedent must be taken care of. Taxes, mortgage payments, funeral bills, condominium fees all must be taken care of. Assets such as real property or stocks may need to be liquidated.
Generally all of the expenses and obligations of the probate estate must be taken care of before the heirs are entitled to their share of the property.
Other Florida Probate Scenarios
This is a process disposing of property but requiring no administration or formal proceedings. The estate must consist solely of exempt personal property, as defined by law, with a net value of $20,000 as of the date of death and non-exempt property the value of which does not exceed the sum of funeral expenses (up to $6,000) and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.
This is a form of administration used only in very narrow circumstances, and does not apply to most estates. It can usually be done without a lawyer. The Clerk of Court usually helps with filling out the forms.
Even though there are no probate proceedings initiated, the custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. If an administration is opened at later date, the deposited will is placed in the probate administrative file at that time.
This procedure is initiated when a decedent with a will dies in another state, and probate proceedings are opened there, but the decedent owns real property in Florida. A copy of the will from the other state is filed in Florida probate court, and an order is obtained admitting the will to probate in Florida, which passes title to the Florida real property to the beneficiaries in the will.
Administration of Probate Estates
Whether someone dies leaving a will, or an estate, most estates need to go through probate administration. The purpose of probate administration is to pass title to assets to a person’s heirs or beneficiaries, and to dispose of a person’s debts to creditors.
For example, if a person dies owning a savings account in her name, that person’s heirs will not be able to get at that money until the estate has been administered. This applies to most property owned by a person at their death.
Full Administration vs. Summary Administration
Estates having assets of less than $75,000.00 may require only a summary administration, which is relatively quick and inexpensive. Estates with assets exceeding $75,000.00 require a full administration, a more involved and costly process.
It is worth noting that under Florida’s “homestead” law, a person’s residence is not included for purposes of calculating the value of the estate assets. Thus, a person may own a million dollar home, and still qualify for summary administration if all other assets in the estate are less than $75,000.00.