Probate in Florida
What is Probate?
In a nutshell, probate is a legal process, which involves paying the debts of the deceased the passing the remaining assets from the dead to the living. If the deceased died with a last will and testament, the assets pass to beneficiaries named in that last will and testament. This is referred to as a testate probate administration. These assets must be probated even if your loved has a will. Florida essentially has four types of probate.
Absent a last will and testament, assets pass to the heir-at-law as specified under Florida Statute Chapter 732, Part I. This is referred to as an intestate probate administration.
Do I Need Probate?
Probate is necessary for assets that are "probatable". This is even the case if your loved one has a last will. Assets subject to probate include:
Assets that are not jointly owned by someone other than your loved one; this includes assts such as bank accounts, real estate, and brokerage accounts, real estate if a deed to real estate does not include the owner's marital status or one spouse has predeceased the other spouse, or does not include the words, "joint tenants with rights of survivorship", and assets that do not include named beneficiaries; assets such as life insurance policies, IRAs, and 401-K plans
Different Types of Probate in Florida
Florida law provides four types of probate administrations. The probate administration which applies to your situation depends on the unique facts of your case.
Formal Administration
Florida Statute Chapter 733 outlines the process for probate administration. A formal probate administration is typically required when the deceased has been dead less than 2 years OR the entire probate estate assets subject to probate administration, are greater than $75,000 (less the value of property exempt from the claims of creditors as defined under Florida Statute 732 Chapter 4). A formal administration requires the appointment of a personal representative (called an executor in other states). It typically takes more time to complete a formal administration as compared to a summary probate administration. Florida Probate Rule 5.400 (c) requires a formal probate administration to be completed within 12 months following the issuance of letters of administration. There can be circumstances however, under which it may take longer than one year. In such cases, the time to complete a formal probate administration can be extended by a court order signed by a judge.
Summary Administration
Florida Statue Chapter 735 Part I outlines the process for a summary probate administration. Florida Statute 735.201 provides the a summary probate administration is allowable if the deceased has been dead more than 2 years, OR the entire probate estate, which is the subject of a Florida probate administration, is less than $75,000 (less the value of property exempt from the claims of creditors as defined under Florida Statute 732 Chapter 4), OR, in the case that the deceased died with a last will and testament, that the deceased’s will does not require direct administration as required by Florida Statute Chapter 733. As a summary probate administration does not require the appointment of a personal representative and may not require payment to or negotiations with, the deceased’s creditors, a summary probate administration typically takes less time to complete as compared to a formal probate administration.
Ancillary Administration
Florida Statute Chapter 734 outlines the process for an ancillary probate administration. Florida Statute 734.102 requires ancillary probate administration if a nonresident of Florida dies leaving assets in Florida, typically real estate. An ancillary probate administration may be administered as a formal probate administration or a summary probate administration, depending on circumstances of each case. If a formal probate administration is required, then it will proceed under the terms of Florida Statute Chapter 733. If a summary probate administration is available, then it would proceed under the terms of Florida Statute Chapter 735.
No formal probate proceedings are required if the deceased leaves only exempt personal property exempt from the claims of creditors, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.
Disposition without Administration
Florida Statute Chapter 735 Part II provides that no formal or summary probate administration proceedings are required if the deceased leaves only exempt personal property, which are exempt from the claims of creditors, and nonexempt personal property, the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness, AND deceased has been dead more than 1 year, AND no administration of the deceased’s estate is pending in Florida. A disposition without administration requires an informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that Florida Statute 735.301(1) applies, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.
Contact Us
If you have any questions regarding a potential probate, we welcome the opportunity to speak with you and help through the probate process.