Probate

Probate is a legal process that takes place after someone dies. Probate allows our assets to pass to our heirs.  There are three types of probate in Florida.  Formal Administration, Summary Administration and Disposition of Personal Property.

Summary Administration

Summary Administration is a shortened administration meant for estates under $75,000 (not counting the value of assets that are exempt) or for people who have died more than 2 years ago.   There is no Personal Representative.  It is quicker and more cost-efficient but it is not always the best choice for your matter.  The court, if it is satisfied that the estate qualifies for summary administration, issues an order distributing the assets of the estate to beneficiaries and creditors.  

Formal Administration

In Florida, this is the most common form of probate.  It is closely watched over by the Courts with respect to the collection and distribution of assets.  It is very complicated and time-consuming.

There are three stages:

  1. Opening of the Estate.  After the hiring of an attorney, the Petition for Administration is filed.  The court then “opens” the estate (after it reviews the file and issues the Letters of Administration) when the personal representative is appointed.  
  2. Estate Administration.   This is the stage when the personal representative can begin administering the estate.  There are several steps such as notifying creditors, collecting assets, inventorying assets, collecting debts, etc. (there are many more steps).  
  3. Closing the Florida Probate.  The estate can be closed when the time has expired for creditors to submit claims, all valid claims have been paid along with expenses, tax returns filed and taxes paid, and all assets ready for distribution.  The judge will then sign an Order of Discharge.  

Disposition Without Administration

A formal proceeding is not required if the decedent (person that died) leaves only personal property, and any other property is exempt under Florida law, due to homestead, or worth no more than the sum of the amount of funeral expenses and reasonable/necessary medical/hospital expenses of the last 60 days of the decedent’s last illness.

What is the "Probate Estate?"

It means the property of a decedent that is subject to administration pursuant to Chapter 731 of the Florida Statutes. Generally, it is property owned solely by the decedent that has not been given away before death.

Why Do Some Want to Avoid Probate?

Florida probate can be complicated, time-consuming and sometimes costly (attorney fees depending on size of estate, filing fees, accounting fees). It can take months and sometimes years to complete. Smaller estates (generally no real property and less than $75,000 in assets) in Florida have a special probate process called summary administration. 

Probate is also a matter of public record. Thus, a good rule of thumb is to keep very personal information out of your Will. Family members can challenge a Will, usually unsuccessfully. Challenges make the settlement process take longer, cost more money and, of course, add 

aggravation. If you plan to provide an inheritance to a disabled heir, it becomes quite complicated to probate. Probate also doesn’t protect an inheritance from creditors–the assets can be confiscated and applied to any judgment including IRS liens and judgments from creditors or former spouses. 

What Goes Through Probate?

A decedent’s Will passes through probate. This means a court will oversee the administration of the Will and ensure the Will is valid. The court will also ensure the property gets distributed per the decedent’s wishes. Thus, a Will becomes part of the public record. 

A trust does not pass through probate. That is because, upon the decedent’s death, the assets are titled in the name of the trust, not the decedent. If there are no assets in the decedent’s name, then, theoretically, there is no reason to open probate (except to limit the time that creditors can make claims on your estate or to probate a “pour-over will).

What Passes Outside of Probate?

Trusts, life estates and joint accounts present methods of avoiding probate. Qualified accounts such as IRAs, 401(k)s, and money market accounts, will pass outside of probate assuming you named a successor ahead of time. After a taxpayer’s death, the beneficiary usually will owe income tax on the amount withdrawn. It has been said that you can obtain the most favorable income tax results by naming the taxpayer’s spouse as the primary beneficiary. A surviving spouse is the only person who has the option of rolling over the retirement account into his or her own IRA. The spouse may then defer withdrawals until he/she turns 70 1⁄2. Anyone else must begin taking withdrawals the year after the taxpayer’s death. Some argue that a revocable trust should be avoided as the beneficiary of retirement accounts in most cases.  However, when you have minor kids and little choice but to leave to them in a trust, we are able to set up a special type of trust to receive these retirement benefits.

As you review your documents, make all bank accounts payable on death to a beneficiary and make sure life insurance, retirement accounts, and money market accounts have beneficiary designations. If you own a car, that can be easily transferred at death without the need for probate, assuming there are no contests. 

It has also become more popular in Florida to use a ladybird deed (enhanced life estate). Under this legal document, your homestead property can be passed through an (irrevocable) enhanced life estate deed (typically, elderly parents benefit their adult children in this manner). This gives the owner a life estate in their home, and at death it passes to the beneficiaries (check with your mortgage company regarding restrictions on refinancing and note that some title insurance companies will not insure the tittle).

Homestead Property

Florida homestead law must be considered if the person who died owned a home used primarily as a residence.  This type of asset passes directly to the heirs automatically pursuant to the Florida Constitution. However, it is oftentimes necessary to receive an Order from the Court declaring the homestead status of the property.  Thus, we must bring a separate proceeding to determine the status of the homestead property.  Florida homestead is not counted towards the assets of the estate.  

Disclaimer:  The Law Office of Lori Vella’s website contains general information directed to Florida residents.  This firm does not intend to give legal advice through its pages and/or blog.  If you need legal advice, we encourage you to find an attorney licensed in your state.  This language on this website website does not create an attorney-client relationship between you and this firm. Review our legal disclaimer page.