Copyright © 2019, The Law Office of Alain Roman, PLLC
The Florida probate process can be time consuming, stressful, and not to mention expensive. My job as a probate attorney is to guide you through the probate process and make the administration as efficient as possible.
I hope you find this guide useful. If you have any questions make sure to leave me a comment and share the content if you enjoyed it.
Probate assets are those assets which you own individually or with someone else without a beneficiary designation. Example of probate assets include an investment property, a bank account without a beneficiary designation, or a business entity.
One of the biggest misconceptions that I see is that people believe that creating a Last Will and Testament will avoid probate in Florida. Actually, a Last Will and Testament will put your beneficiaries right in probate court to administer your estate and re-title your assets.
Check out my top 5 common ways to avoid Florida probate. It is an useful guide and will outline some of the strategies used by probate attorney to avoid probate in Florida.
If you are reading this then someone you know or a loved one has passed away and you are trying to get a better understanding of the Florida probate process. Well you have come to the right place.
In Florida, you have three types of probate administration: 1) Disposition of Personal Property without Administration; 2) Summary Administration; and 3) Formal Administration.
Under Section 735.301 of the Florida Statutes, no administration or formal proceedings are required when the only property you leave behind are exempt personal property under Section 732.402 and the Florida Constitution.
In addition, nonexempt personal property the value not exceeding the amount required for funeral expenses and reasonable and necessary medical bills in the last 60 days of your passing.
In Miami-Dade County for example, in order to do a Disposition of Property without Administration your assets must be $6,000 or less and cannot exceed your funeral bills.
Although it is always recommended to seek the advise of a probate attorney, the Clerk of Courts in your particular county should be able to assist you with this process.
Summary Administration is available when your assets are less than $75,000 or your death occurred over 2 years ago.
Although summary administration can be administered a lot quicker than formal administration, probate attorneys do not like to do summary administration in a lot of instances, specially if the decedent has been dead for less than two years.
The reason for this is that after two years the claims of any creditors of the decedent are barred. In summary administration, if the person has less than $75,000 in assets but has been dead for less than 2 years, it is recommended for the probate attorney to also do a notice of creditors, which at this point the time frame becomes more of a formal administration without the added notice requirements.
As a caveat, if you will be selling the real estate of the decedent through the probate process, at least in Miami-Dade County. you will need to do it through the formal administration process. Having a probate attorney that is familiar with the local probate rules is important, regardless where the probate attorney is located in the State of Florida.
In summary administration, no personal representative is appointed. The petitioner, most likely a surviving spouse or a family member, will file a Petition for Summary Administration and provide the Probate court with all the other required documents, like the Last Will and Testament, a Death Certificate, and any other document pertinent to the administration.
Once the probate judge reviews the documents, and he or she is satisfied that all the requirements are met, and that the estate has no creditors, and/or the assets of the estate are exempt, then the probate judge at that point will sign an order approving of the administration and the transfers of assets.
This process can take anywhere between 1-3 months depending on the complexity, number of assets, beneficiaries, and the county where the estate is being probated.
Formal Administration is typically required when the assets are over $75,000 and you have been dead for less than 2 years. Formal administration is typically also required even if you have been dead for over 2 years if real estate is going to be sold during the probate process.
The reason why the 2 year mark is so important is because after 2 years your creditors will be barred from bringing any claims under your estate, subject to some exceptions.
Formal Administration is begun when a Petition for Formal Administration is introduced to the Probate Court in the county where you resided or the county where the real estate is located.
The Petition for Formal Administration is introduced by the petition with the assistance of a probate attorney. When there is a Last Will and Testament, the Will will typically outline your preference as to the appointment of a personal representative.
If there is no Last Will and Testament, what we call Intestacy Proceedings, Florida law gives preference to your surviving spouse, then to the person selected by the majority of your beneficiaries, and then to your heir nearest in degree.
As with any type of probate administration, your Last Will and Testament must be introduced, if any, and a Certified Copy of your Death Certificate.
Formal Notice of the Petition for Administration must be given to all interested parties or they must waive service of the Formal Notice.
Once the requisite period of the Formal Notice has passed (20 days) or all the waivers from the beneficiaries have been obtained, a probate judge will sign the Letters of Administration, and an Order Admitting the Last Will and Testament, and appointing the Personal Representative.
These orders are what give the personal representative the powers to act on the behalf of the estate and do all the duties that are required.
The next step once a personal representative is appointed is to publish a Notice of Creditors in a local newspaper in the county where you resided. You must service notice to any known creditors and they will have 30 days to bring a claim from the date of service. Any unknown creditors will have 3 months from the date of first publication to bring in a claim.
If you were 55 years or older at the time of your death, then the Notice of Creditors must all be served to the Agency for Health Care Administration (“AHCA”). AHCA is responsible for administering the State of Florida Medicaid Program. If you were receiving Medicaid benefits at the time of your death, then AHCA may bring in a claim for any money paid on your behalf for medical services.
During the Creditor claim period, the personal representative with the assistance of the probate attorney must prepare an inventory of all your assets being probated. The inventory is due 2 months from the signing of the Letters of Administration.
If any claims are filed, the personal representative may either object to the claim, strike the claim as untimely, or accept responsibility. The personal representative will have 30 days from the filing of the claim to object to any claims brought by a creditor. If any claim is objected to, then the creditor will have 30 days to file an independent action to satisfy their claim.
One possibility could be that although there are creditor claims, all the assets under your estate may be exempt from the reach of creditors. This is typically the case with exempt Homestead and other exempt personal property.
One trap for the unwary is when you require your Homestead to be sold during the probate administration and the proceeds distributed to your beneficiaries. This will result in the loss of the Homestead protection and the proceeds accessible to any creditors of the estate which you did not object too.
If the creditors claims were not properly objected to by the personal representative, then the personal representative with the assistance of the probate attorney must petition the Probate court to pay the creditors out of the nonexempt assets of the decedent.
Once the creditor claims are satisfied, then the probate attorney can petition the probate court to distribute the assets of the estate to your beneficiaries according to their allocated interest. The probate attorney will get consent from the beneficiaries and proof of receipts.
Depending on your engagement with your probate attorney, here is typically where the probate attorney will collect his or her fees out of the probate assets being distributed.
In the distribution phase we also file a Petition Determining Homestead if not done earlier, and/or an Order Determining Homestead Status of Real Property. Although the Florida Homestead is not a probate asset, most probate judges will not sign an order determining Homestead until all the creditors are ascertained at the end of the creditor period.
Finally, the personal representative with the probate attorney’s assistance need to file an accounting of the estate. The accounting is particularly important when there are unpaid creditors but there are not sufficient assets to satisfy those creditors.
Alright now we are in the final stretch. By this point, you should have done most if not all the necessary things to administer the estate.
Final thing to do is to petition the court to discharge the personal representative. In order to discharge the personal representative, the probate court must find that 1) the estate has been fully administered and property distributed; 2) claims of creditors have been paid or otherwise disposed of; 3) the taxes imposed by Chapter 198, if any, have been paid; and that 4) the Personal Representative should be discharged.
Once the personal representative has been discharged then he or she is relieved of any further duties or liabilities and the estate is closed.
If at the end of the formal administration there are any unpaid creditors, then if any assets are later found, then those creditors may attach to those assets assuming they are not exempt.
I hope you found this information useful. It certainly does not cover every single detail and practice that goes on in Florida probate court, but it does provide you a good foundation of how the process works and what to expect.