Handling complexities of probate can be pretty stressful, especially when you are mourning the death of a loved one. It’s important to make the right choices along the way, such as by choosing between two official types of probate available in Florida: (1) summary administration and (2) formal administration. This decision might seem complicated, but asking yourself the questions below and working with our expert probate attorney can help you make the right choice.
Quickly Identifying if Probate in Florida is Required
Probate is a procedure where assets owned by a deceased person (the decedent) are distributed to heirs after payment of creditors and estate expenses. Probate proceedings in Florida most commonly take one of two forms generally: (1) summary administration and (2) formal administration. There is a third form of probate, which technically is not an official form of probate called disposition without administration which only applies in limited circumstances.
Generally, probate is required when a person dies owning property in his or her own name that does not have a payable or transferable on death provision or a joint owner (such as a bank account) or passes property that does not have a survivor provision (as in a spouse who owns property in both names as a husband and wife or as ‘joint tenants with survivor rights’). If any of these situations arise, then it will need to be determined which probate would be best for the estate.
Differences Between Summary Administration And Formal Probate
Summary administration is typically reserved for smaller estates or estates where the decedent has been deceased for greater than two years. Summary administration does have its limitations though and may not be applicable for every case even if on the surface an estate would appear to qualify. Examples of situations that could prevent the use of summary administration include a large number of creditors of the estate, property located outside the state of primary residence of the deceased, and when assets are known to exist but cannot be located just to name a few.
There are two ways to qualify for Summary Administration:
- The value of the probate estate are below $75,000 (non-probate assets and exempt assets are not including in that figure); and/or
- Two years have passed since the decedent’s death.
The benefits of Summary administration are that it is usually quicker and less costly than formal administration in the right circumstances.
To begin formal administration, an interested party must file a Petition for Administration. It is normally submitted with the circuit court clerk in the county where the decedent had been residing at the time of death. The documents include:
- Death Certificate(s),
- Last Will and Testament (if applicable) or an Affidavit of Heirs (if there wasn’t a will),
- Oath of Personal Representative and Designation of Registered Agent,
- Petition to Waive Bond of Personal Representative (if applicable), and
- Consents of any other beneficiaries or proof of service of Notice of Administration.
If the deceased died testate (with a valid will) or intestate (without a valid will), different petitions and orders would be required for the court. For instance, if a valid will existed, an order to admit the will is required for every will here in the State of Florida.
In formal administration, the personal representative uses the letters of administration signed by the probate judge to prove they represent the estate. For example, to access the bank accounts of the decedent the personal representative may present the letters to a bank.
Hiring a Probate Attorney
What form of probate is better can depend on your circumstances and your condition. Nonetheless, you can remain stress-free through the entire Probate process with support from our professional probate attorney in Florida.