There are four different forms of probate here in the State of Florida. Probate can become very complicated that may require the assistance of an experienced Finity Law attorney to help navigate the probate process.
Probate is very rarely a “do it yourself” type project so the attorneys at the Finity Law Firm offer free initial consultations to discuss your case.
The type of probate used is based on a number of variables such as the size of the estate, types of assets in the estate, creditors of the estate, disagreements between beneficiaries, and the amount of time since the decedent has passed.
1. Formal Administration
- Formal administration begins with the naming of a personal representative to administer the estate of a decedent. Personal representatives are also referred to as an executor, if the position is held by a male, or executrix, if the position is held by a female. In Florida, we generally use the Personal Representative’s (PR) gender-neutral term. The PR is in charge of gathering all of the deceased’s estate properties, identifying estate creditors, paying the deceased’s final debts, taxes, and administrative expenses from the deceased’s assets, and eventually, after the probate process, transferring the deceased’s assets to the appropriate beneficiaries.
- If the decedent has left a will, then the PR will request admission of the will ensuring that it was constructed properly under Florida law. If the court finds the will to be legally valid, then the PR can follow the wishes of the decedent set out in that document.
2. Summary Administration
- Summary Administration is a type of probate that can be used to administer estates with non-exempt assets totaling less than $75,000 or if the decedent has been dead for greater than two years. In summary administration, there is no naming of a personal representative or an executor of the estate.Instead, summary administration is completed by submitting a petition to the Court to direct the allocation of the deceased’s estate to those entitled to it under the Will or in accordance with law with all of the necessary supporting documents. If the court approves the petition, it will issue an Order for Summary Administration directing the assets to be allocated to the proper beneficiaries.
- If the decedent died testate (ie the deceased had a valid will at the time of their death), the properties and assets would be distributed as instructed by the will. When the decedent died intestate (ie the deceased died and did not have a valid will), then Florida intestacy law will determine how to divide the probate assets.
- In the state of Florida, there is a two year non-claim provision that bars any creditor claims that are not filed within two years of the decedent’s death. As a result of the non-claim provision, if the decedent has been dead for more than two years, creditor claims do not need to be addressed as part of the summary administration process.
- However, this two year window can be significantly cut down, allowing creditors only three months to bring forth their claims. This is achieved by publishing what is called a Notice to Creditors, subject to s. 733.2121, notifying all possible creditors that an order of summary administration has been entered by the court.This notice shall specify the total value of the estate, as well as the names and addresses of those to whom the order has been assigned. Upon filing this notice with the court, all claims and demands of creditors against the decedent’s estate must now be filed within three months, effectively shortening the amount of time creditors have to bring forth their claims.If, after a Notice to Creditors has been published, creditors do not bring their claims within three months they will have their claims forever barred for failing to meet the deadline. 735.2063.
3. Ancillary Administration
- The third type of probate is used when an individual, who is a primary resident of another state, passes away owning assets in Florida, typically real property This is especially common in Florida, as many families from all over the world have vacation homes in Florida.
- The ancillary probate process provides the necessary legal authority for the relocation of the Florida property when the primary probate proceedings take place in a different state.
4. Disposition Without Administration
- Disposition without administration technically is not a form of probate but we will include it in this list for clarification purposes. Disposition without administration is possible only under extremely limited circumstances and is therefore not used as often as the other forms of probate. However, this clause is used for reimbursing a person who has paid the decedent’s final expenses.
- Section 735.301, Florida Statutes, provides for the eligibility for disposition of personal property without administration. The required forms and documents for a Disposition of Personal Property without Administration include a valid death certificate, signed and notarized approval from legitimate descendants, the deceased’s final will if it exists, and several other important criteria.
Probate can be complicated and if not done correctly can be detrimental to the deceased’s beneficiaries, family, and friends. Assets could be left out, creditors could take everything, and delays in the distribution of assets can go on and on.
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