The term probate actually refers to the legal process of “proving” a will. There are different ways to organize an estate plan to avoid probate (such as using revocable trusts), but having a will alone will not keep you out of probate court. Probate depends on what assets you own and how they are titled, not whether or not you have a will.
Under Florida law, there are four types of probate administration: formal administration, summary administration, ancillary administration, and disposition without administration. Each probate proceeding will depend on the unique circumstances of his or her estate, including the size of the estate.
In any of these scenarios, you will need the guidance of a skilled probate attorney to help navigate the probate process. The State of Florida does not permit pro se or do-it-yourself probate.
Formal administration is the most common type of probate proceeding in Florida; also referred to as “regular” probate. To kick off the formal probate process, the executor or an interested party (i.e. someone with a potential stake in the deceased individual’s estate) petitions the court to designate a personal representative (PR) to act on behalf of the decedent’s estate. Once a court accepts the petition and appoints a PR to oversee the probate process, the estate is considered official “opened.”
If the decedent left a will, the PR will request the will be admitted. If the court finds that the will is legally valid, then the PR can follow the decedent’s wishes outlined in that document. Any interested party (i.e. any beneficiary or heir of the estate) may challenge the validity of the will.
When a PR is appointed, the court will issue Letters of Administration. These documents give the PR legal authority to administer the decedent’s estate. During the formal administration process, the PR will collect and inventory decedent’s assets, value them, and pay any debts or taxes owed by the estate. After assets have been valued and expenses paid, whatever remains is distributed according to the instructions or the will (testate) or pursuant to Florida law (intestate).
Depending on the size of the estate, this formal administration process can be a drawn-out and complex process lasting anywhere from several months to several years.
In contrast to the length and complexity of the formal administration process, Florida law provides alternative probate proceedings involving condensed procedures.
Summary administration is an abbreviated probate process. It only applies if the value of the estate is less than $75,000 (exclusive of exempt assets, ex: homestead property) and all of the decedent’s debts are paid, or if the decedent has been dead for more than two years.
Like formal administration, summary administration is initiated by filing a Petition for Administration that includes all information about the estate. In contrast, however, no PR will be appointed. Once the court determines that the estate qualifies for summary probate, it issues an order distributing the probate assets to the lawful beneficiaries directly. If the decedent died testate, the assets will be distributed according to the instructions of the will. If the decedent died intestate, Florida law will dictate how the probate assets are to be distributed.
Ancillary administration applies if the decedent owned property in Florida but was not a Florida resident. This is common for out of state individuals who own vacation homes in Florida. It is important to hire an experienced attorney who is familiar with Florida probate law to assist you.
In many cases, an ancillary administration process is not radically different from a formal administration. When the primary probate proceedings are taking place in a different state, a Florida ancillary probate proceeding provides the necessary legal authority for the Florida property to be transferred. Typically, the PR named in the primary proceedings is also appointed by a Florida court to act in the same capacity in Florida. The ancillary probate proceeding will progress on a parallel track with that of the out-of-state primary proceeding. The same procedures are then followed as with a formal probate proceeding.
Disposition without administration, also referred to as “small estate” disposition, is only available in very limited circumstances and is therefore rarely used. Disposition without administration is not technically a form of probate administration because, as the name implies, no actual administration occurs. Instead, this disposition is used to reimburse an individual who has paid the final expenses of the decedent.
An estate is only eligible for this type of disposition if the decedent leaves an estate consisting solely of:
See Section 735.301, Florida Statutes.
The PR must complete an application for disposition without administration describing the value of the exempt property, the value of the non-exempt property, funeral expenses incurred, any medical expenses paid, and an outline of the requested payments or distributions. The application will be submitted to probate court along with a copy of the death certificate, receipts of expenses, the decedent’s will (if any), and a filing fee.
It is important that you are aware of the differences of each type of probate administration and which will apply to your unique set of circumstances. Such knowledge can help you and your probate attorney draft an estate plan that accurately represents your desires and helps communicate to your PR and family what to do upon your death.
Learn more about the probate process by discussing it with an experienced estate planning lawyer. To get started, contact Eldredge and Davis P.A. today to set up your free consultation with our firm. During your consultation, we will examine all the relevant facts about your case, advise you on what to expect from the probate process, and explain how a thoughtful estate plan can save time and money when it comes time.