FLORIDA PROBATE ATTORNEY
Administration & Litigation Throughout the State of Florida
FLORIDA PROBATE ADMINISTRATION
Formal Administration, Summary Administration & Ancillary Administration
WHAT IS FLORIDA PROBATE ADMINISTRATION? Florida probate administration Florida Summary Administration: The Summary Florida Probate Administration process may be utilized when the value of the entire Florida probate estate does not exceed $75,000 or the deceased Florida resident has been dead for more than two years. In a Florida Summary Administration proceeding, the Florida Probate Estate must not be indebted or provisions for payment of the debts must be made. The Florida probate proceeding can be finalized and an Order of Summary Administration entered in a relatively short period of time (perhaps one to two weeks). Florida probate administration only applies to assets that the decedent owned in his or her sole name at death Florida probate administration is necessary to pass ownership of a decedent’s probate assets to his or her beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the Court, it will be ineffective to pass title to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership to the decedent’s assets to those persons who are to receive them under Florida probate law.
is a court supervised process for identifying and gathering a deceased Florida resident's
assets, paying his or her federal income and/or estate taxes, creditor claims and expenses of
Florida probate administration, and distributing his or her assets to the designated
beneficiaries.
TYPES OF FLORIDA PROBATE ADMINISTRATION: There are two types of probate
administration under Florida law: Formal Administration and Summary Administration
(probate assets valued under $75,000).
Florida Formal Administration: The Formal Florida Probate Administration process begins with the filing of the deceased Florida resident's original Last Will and Testament (“Will”) with the appropriate Florida probate court and the preparation and filing of a Florida Petition for Administration (the “Petition”). The Petition requests the Florida probate court to: (i) open a Florida probate estate for administration of the assets of the deceased Florida resident, (ii) accept the Will (if any), and (iii) appoint a Florida personal representative (by issuance of Letters of Administration). After the Letters of Administration are issued, all known beneficiaries and creditors receive notice of the filing of the Florida probate proceeding. A Notice of Administration or Notice to Creditors is then sent to any known party who may have a claim against the estate of the deceased Florida resident.
FLORIDA ANCILLARY PROBATE PROCEEDINGS: The Ancillary Florida Probate Administration process may be utilized when a Non-Florida resident passes away owning real property in Florida. This process is handled at the same time that the probate action in the state of residence is being handled through either formal or summary administration. In order to commence the Ancillary Florida Probate proceeding the Florida probate court will require the following documents: (i) Certified copy of death certificate; and (ii) Exemplified or authenticated copies of the following documents from the Domiciliary Probate Court: (a) Will, if there is one; (b) Petition for administration, or similar document; (c) Order admitting will to probate, if there is one; (d) Order appointing personal representative; (e) Letters of Administration, if still current; (f) A complete list of all assets individually owned by the decedent in the State of Florida; and (g) A list of the names and addresses of all the heirs and the relationship to the decedent.
WHAT ARE FLORIDA PROBATE ASSETS? Florida probate administration only applies to assets that the decedent owned in his or her sole name at death or which contain no provision for automatic succession of ownership at his or her death.
Florida Probate assets: A bank account in the sole name of a decedent, real estate titled in the sole name of the decedent or as a tenant in common with another person, and an insurance policy, annuity or retirement account payable to the decedent's estate.
Non-probate Florida assets: A bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, and a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary.
IS FLORIDA PROBATE NECESSARY? Florida probate administration is necessary to pass ownership of a decedent’s Florida probate assets to his or her beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the Florida Court, it will be ineffective to pass title to the decedent’s beneficiaries. If the decedent had no will, Florida probate is necessary to pass ownership to the decedent’s assets to those persons who are to receive them under Florida probate law. Florida probate administration is also necessary to wind up a decedent’s financial affairs after his or her death. Florida probate administration of a decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
WHERE ARE FLORIDA PROBATE PAPERS FILED? The Florida decedent’s will, if any, and certain other documents required in order to begin the Florida probate proceeding, are filed with the Clerk of the Florida Circuit Court in the county in which the decedent lived. A filing fee must be paid to the Clerk. The Florida Probate Clerk then assigns a file number, and maintains an ongoing record of all papers filed with the Clerk for the administration of the decedent’s Florida estate.
HOW LONG DOES FLORIDA PROBATE ADMINISTRATION LAST? The answer depends on the facts of each situation; some Florida probate administrations take longer than others. For example, the personal representative may need to sell Florida real estate prior to settling the estate, or to resolve a disputed claim filed by a creditor, or a lawsuit filed to challenge the validity of the will. Any of these circumstances, if present, would tend to lengthen the Florida process of administration. Even the simplest of Florida probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple Florida probate estate will take about five or six months to properly handle. If the Florida probate estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the estate are first due within 12 months after the Court issues Letters of Administration to the Florida personal representative. This period can be extended if necessary.
If the Florida probate estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death, however, the time for filing the return can be extended for another six months. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.
Florida probate administration is also necessary to wind up a decedent’s financial affairs after his or her death. Probate administration of a decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed. The Florida decedent’s will, if any, and certain other documents required in order to begin the probate proceeding, are filed with the Clerk of the Circuit Court in the Florida county in which the decedent lived. A filing fee must be paid to the Clerk. The Florida probate Clerk then assigns a file number, and maintains an ongoing record of all papers filed with the Clerk for the administration of the decedent’s estate.
PROBATE SERVICES PROVIDED FOR THE FOLLOWING FLORIDA COUNTIES:
Alachua Baker Bay Bradford Brevard Broward Calhoun Charlotte Citrus Clay Collier Columbia DeSoto Dixie Duval Escambia Flagler Franklin Gadsden Gilchrist Glades Gulf Hamilton Hardee Hendry Hernando Highlands Hillsborough Holmes Indian River Jackson Jefferson Lafayette Lake Lee Leon Levy Liberty Madison Manatee Marion Martin Miami-Dade Monroe Nassau Okaloosa Okeechobee Orange Osceola Palm Beach Pasco Pinellas Polk Putnam Santa Rosa Sarasota Seminole St. Johns St. Lucie Sumter Suwannee Taylor Union Volusia Wakulla Walton and Washington.
If a decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the Florida personal representative of the decedent’s Florida probate estate, will be as provided by Florida law.
WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL? When an Florida resident dies without a valid will, he or she is “intestate.” If the Florida decedent died intestate, his or her Florida probate assets will be distributed to the decedent’s heirs in the following order of priority:
• If the decedent was survived by a spouse but left no living lineal descendants (children), the surviving spouse receives all of the decedent’s estate.
• If the decedent was survived by a spouse and left one or more lineal descendants (all of whom are the descendants of both the decedent and his or her spouse), the surviving spouse an initial allotment from the probate estate plus one-half of the rest of the probate estate, and the decedent’s lineal descendants share the remaining half.
• If the decedent was survived by a spouse and left one or more lineal descendants (at least one of whom is not also a lineal descendant of the surviving spouse), the surviving spouse receives one-half of the probate assets, and the decedent’s lineal descendants share the remaining half.
• If the decedent was not married at his or her death but was survived by one or more of his or her lineal descendants, those descendants will receive all of the decedent’s estate.
• If the decedent was not married at his or her death and had no lineal descendants, the decedent’s probate assets will pass to the decedent's surviving parents, if they are living, otherwise to the decedent's brothers and sisters.
WHO CAN BE A PERSONAL REPRESENTATIVE OF A FLORIDA PROBATE ESTATE? A Florida personal representative can be an individual, or a bank or trust company. To qualify to serve as a personal representative, an individual must be either (i) a Florida resident or, (ii) regardless of residence, a spouse, sibling, parent, child, or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.
WHO WILL THE FLORIDA PROBATE COURT APPOINT TO SERVE AS PERSONAL REPRESENTATIVE? If the decedent had a valid will, the Florida Probate Court will appoint the person named by the decedent in his or her will to serve as personal representative, as long as they are legally qualified to serve.
If the decedent did not have a valid will, the surviving spouse has the first right to be appointed by the Judge to serve as personal representative. If the decedent was not married at his or her death, or if the decedent’s surviving spouse declines to serve, the person selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree among themselves, the Florida Probate Court will appoint a personal representative after a hearing is held for that purpose.
ROLE OF A FLORIDA PERSONAL REPRESENTATIVE: The Florida personal representative has a legal duty to administer the Florida probate estate pursuant to Florida probate law. The personal representative must:
• Identify, gather, value and safeguard the probate assets;
• Give notice to potential claimants to file claims as required by law;
• Provide information about the Florida estate administration and notice of the procedures required to those having any objection to the administration of the Florida probate estate;
• Object to improper creditor claims, and defend suits brought on them;
• File tax returns and pay any taxes properly due;
• Distribute assets to beneficiaries; and
• Close the estate.
