Before we get into the Florida Probate process, it’s important to understand what probate is. Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.
The first thing that happens in the Florida probate process is that the decedent’s assets are used to pay the cost of the probate proceeding. After this, the assets are then used to pay the decedent’s outstanding debts. The final step deals with the remainder, which is distributed to the decedent’s beneficiaries.
To learn more on this process from a legal stand point use the following. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).
There are two types of probate administration under Florida law: Formal Administration and Summary Administration.
After a person dies, who also has an executed will, a court proceeding is set up in the county where the person passed. The timing and complexity of these cases depend on a number of factors.
On average, formal administration takes 6-12 months to complete (unless a federal estate tax return is required). An estate tax return depends on the estate law (federal and state) in effect at the date of death of the decedent. An estate tax return is currently required to be filed within nine months of a decedent’s death. You may also request an extension if needed.
Summary administration is an abbreviated form of Florida probate which does not require the appointment of a Florida personal representative. Because of this, Florida summary administration usually requires less time, effort, and expense than it’s counter part, formal administration.
There are two ways in which an estate can qualify for summary administration in Florida. First, for summary administration to be available, the decedent must have been dead for more than two years. The second, the value of the entire estate subject to administration in Florida, less the value of property exempt from the claims of creditors, must not exceed $75,000. Because of these two qualifications, many do not have the ability to use summary administration in Florida.
There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration applies only in limited circumstances. This process allows for someone who has paid for a decedent’s final expenses, to be reimbursed from the assets of the decedent’s estate.
Note: This process is only available if the decedent did not leave any real estate and the only assets in the estate are either exempt from creditor’s claims or do not exceed the total amount of the final expenses. While this process avoids probate, in some cases it could be impractical. For example, this process can open the assets of decedent’s estate to the claims of creditors, can have less favorable tax benefits, and there is a risk of unintentionally disinheriting some children from one spouse but not of both spouses. Therefore, it is important to consult with a Florida probate lawyer to help you consider the variables in your case and make an informed decision.
The Florida Probate process can be extremely difficult and confusing. Here at the law offices of Tom D. Waldron we want to help you understand this process and the best way for your and your family to navigate it. If you have any questions, click the button below to in in contact with us!