A Quick Guide to Florida Probate

To some people, the very term “probate” may invoke fear about bureaucratic and costly process involving a deceased individual’s estate. But those with the facts – and a qualified Probate Lawyer by their side – will find that Florida probate law is nothing to be feared or dreaded.

Broadly defined, probate is a court-supervised legal process that administers your estate after your death and distributes your assets to the beneficiaries specified in your Will; in the absence of a Will, the probate court will designate someone, usually next of kin, to serve as personal representative and will locate heirs and determine how to distribute the assets. In either instance, probate serves the same purpose: identifying and cataloging your assets, paying off debts you may owe to creditors or tax collectors, and passing on the remaining assets accordingly.

Probate laws vary by state. Florida requires probate in one of two situations: if the decedent was a Florida resident with assets in Florida, or if the decedent was a non-Florida resident with assets in the state upon death. In either instance, probate involves only the assets owned solely by the decedent.

Assets owned by one or more individuals may avoid being distributed via probate is if there is a mechanism for automatic succession, such as a jointly-owned bank account, or real estate owned jointly with the right of survivorship; similarly, assets with a designated beneficiary, such as life insurance policy or retirement plan, will typically not be subject to probate.

In Florida, there are three kinds of probate:

Formal Administration:

This is the most common form or probate, and takes between six months to a year (or possibly longer if there are a lot of heirs or assets, or if there is a dispute amongst the heirs). The Will is validated and filed with the courts, and either the executor designated by the Will – or an individual issued Letters of Administration to oversee the estate as a personal representative – is tasked with gathering and accounting for all the decedent’s assets. If there is no Will or the Will is declared invalid, the probate will still proceed as an “intestate” estate (i.e., an estate without a valid will). The executor / personal representative must also arrange for any and all taxes or debts to be paid. A “final accounting” of the estate must then be filed in court, showing its contents and assets, how they are managed, and how the remaining assets (after payment to creditors and tax collectors) will be distributed to heirs and beneficiaries. During this time, anyone who disagrees with the final accounting or plan of distribution can file an objection. Otherwise, once all of the assets have been distributed and all debts and taxes are paid, the personal representative / executor must file receipts and records to the Court proving that everything is clear and formally request a court order be issued declaring the representative’s duties are fulfilled and the probate is finished.

Summary Administration

As the name suggests, this is typically the faster and simpler approach to administering and closing an estate. It applies only in two circumstances: when the decedent’s probate assets are less than $75,000 or if the decedent passed away more than two years prior to the start of summary administration. The Will’s executor (or if there is no will, the petitioner) can file a “Petition for Summary Administration” – to be signed by a surviving spouse and any other beneficiaries – that lists all the assets and their values and establishes how they will be distributed. There is no personal representative, so in the absence of a Will, the court will release property directly to the legally recognized heirs (usually a spouse and thereafter adult children).

Ancillary Administration

This is the type of probate that applies to the second situation stated earlier: a non Florida resident leaving behind assets in the state. In this instance, the court will issue “Ancillary Letters” that work similar to Letters of Administration, in that the court appoints an individual to serve as personal representative with the authority to administer the estate. Once an individual is deemed qualified to act as personal representative, the probate process proceeds normally, as it would in formal administration.

Whether you need to plan your estate to ensure that the probate process goes smoothly, or you’re a personal representative unsure of how to best fulfill your duties, you’re best served by turning to an experienced and qualified probate lawyer. Jurado & Farshchian, P.L. has proven expertise in estate planning, drafting effective wills and trusts, and assisting personal representatives and executors through the probate process. Our attorneys will be with you every step of the way to make sure everything goes smoothly.