Probate in Florida is a legal proceeding that administers the provisions of a decedent’s testamentary last will after the decedent’s death. Probate is designed to pay the decedent’s creditors and to transfer title of the decedent’s property to heirs designated in the will.
The general rule is that all assets in the decedents personal name are included in and require probate. Probate is not required for assets that transfer to designated individuals by contract and that are exempt from the decedent’s creditors, such as retirement accounts, life insurance, and tenants by entireties property. Assets that are subject to probate comprise “the probate estate.”
There are important initial steps in the probate timeline. The first step is to identify, value, and assemble the assets which comprise the probate estate. The other initial step is to identify the decedent’s creditors to whom the decedent owed money or who had legal claims against the decedent.
Florida’s probate law and procedures are expressed in the Florida Probate Code in Chapters 731 through 735, Florida Statutes. The Florida Statutes provide two types of probate:
- summary probate
- formal probate
Determining which type of probate to file depends on the amount and nature of property in the decedent owned and the decedent’s date of death.
Florida Probate Timeline
The timeline of a formal Florida probate is as follows:
- File the petition for administration and order admitting the original will to probate.
- Notification of the beneficiaries.
- The court issues letters of administration.
- Issuance of a notice to creditors.
- Consolidation of assets.
- Pay estate taxes, if any.
- Final accounting.
- Distribution of assets to beneficiaries.
- Formal discharge.
How long does probate take in Florida?
Formal probate in Florida takes around 7-10 months. Summary probate takes about 1-2 months.
Often the most time intensive step of the Florida probate process is the consolidation of assets, which includes transferring assets to a probate account, selling property, and managing existing assets. Fewer assets leads to a quicker probate.
Summary probate is available when the probate estate consists of property whose total value is under $75,000, excluding real property, providing there are no known creditors. Summary probate is also available two years after the decedent’s death regardless of the value of the decedent’s estate assets. Creditor claims expire two years after death.
The summary probate rules and procedures are set forth in Chapter 735 of Florida law. Summary probate can be compared to a small claims case in civil matters. Summary probate does not require the appointment of a personal representative. Summary probate involves preparation and filing of a short summary probate petition accompanied by an affidavit that there are no creditors who could file a claim against the decedent or his estate.
Florida does not have a simplified procedure using a small estate affidavit. Instead, small estates follow Florida summary probate rules.
Ancillary Administration in Florida
In Florida, ancillary administration is the process to probate a Florida home or other real property for a non-resident.
In other words, if a resident of another state dies while owning a home in Florida, such as a rental or vacation home, then the executor of the deceased person’s estate must start a separate Florida probate just to handle the Florida property.
Ancillary administration proceedings are governed by Florida Statute 734.102. Just like with the regular probate procedure, the first step in ancillary administration is to appoint a personal representaive.
Unlike with a Florida resident, the personal representative, or executor, of the estate does not need to be related to the deceased person or a Florida resident. Instead, as long as the personal representative is qualified to serve under the laws of the state where the deceased individual died, then the personal representative will be qualified to serve in Florida.
Otherwise, ancillary administration will proceed using regular probate procedures.
Formal probate is filed when the total estate value exceeds $75,000 or in any size estate that requires the probate court’s action or intervention (such as transfer of real estate, creditor claims, or matters concerning the heirs).
Formal probate is conducted by a person appointed by the court to be the decedent’s personal representative. The personal representative works on behalf of the decedent to administer the probate estate and represent the decedent in any other legal matters. A personal representative must be represented by an attorney in all legal matters before the probate court.
The personal representative’s primary duty is to protect and preserve the probate assets and to see that the assets are invested in a prudent and cautious manner. The personal representative has possession and control of all assets of the estate during a Florida probate.
Florida Statutes has rules about who may serve as personal representative of a Florida probate. Generally, a decedent’s family member, wherever located, or any other Florida resident over the age of 18 may serve as a personal representative. An attorney wherever located may also be a personal representative in a Florida formal probate.
In most cases, the court will appoint as personal representative the person nominated in the decedent’s will. If a will does not nominate a personal representative, or if the nominee is ineligible, unable, or unwilling to serve as personal representative, or if there is no will, the court selects a qualified personal representative.
A person nominated as personal representative may decline appointment. Once appointed, the court may remove a personal representative for cause such as failure to properly conduct the probate proceeding. A party to a probate proceeding may petition the court to remove a personal representative for cause.
Florida law considers the personal representative to be a “fiduciary” (a person in a position of special faith, trust, and reliance). The personal representative has a fiduciary duty toward the decedent’s creditors and heirs and has a duty to properly conduct the probate proceeding. Personal representatives are entitled to a reasonable fee for their service and to be reimbursed for any personal money spent for probate administration such as attorney’s fees, filing fees, and costs. Section 733.617, Florida Statutes states guidelines about reasonable personal representative fees. Section 733.6171 expresses guidelines about reasonable probate attorney’s fees based upon a percentage of the probate estate. Most practicing probate attorneys charge clients less than the statutory attorney’s fees.
Florida Probate Procedure
The formal probate process, referred to as the administration of the probate estate, begins with filing the original will with the court and the preparation and filing of a petition for administration. A probate judge will sign an order admitting the decedent’s will for probate and will issue “letters of administration” appointing the estate’s personal representative.
The attorney for the estate will provide the personal representative certified copies of the letters of administration (which are evidence of the personal representative’s legal authority). The estate’s attorney sends copies of the letters of administration to parties he believes are involved or interested in the probate. Beneficiaries of the estate will be sent copies of a notice of administration by certified mail if they have not previously waived notice.
A primary function of probate is to give the decedent’s creditors the opportunity to be paid from estate assets. Typical creditors in a probate proceeding are the decedent’s mortgage company, funeral expenses, and health care professionals who provided medical care during the decedent’s last illness. The personal representative’s attorney notifies any party the personal representative knows, or has reason to believe, may have a claim against the decedent’s estate. The personal representative’s attorney must also notify potential and unknown creditors by publishing a legal notice in the newspaper.
During the early stages of administration, any creditor having a claim against the decedent is required to file a claim with the probate court. The court will send the personal representative’s attorney a copy of all claims filed. The personal representative should review claims filed to determine whether each claim is valid. The personal representative may object to any claim which he believes is incorrect. Objections are usually resolved by mutual agreement.
If the parties cannot reach agreement, creditor disputes are resolved by the probate judge. Once the personal representative or the court determines the validity of contested creditor claims filed, the personal representative pays the claims (either in total or in a prorated amount).
The personal representative must identify, assemble, and secure probate estate assets. A personal representative should compile a list of assets as soon as possible after their appointment. The personal representative should maintain adequate insurance coverage of tangible personal property or improved real property. A list of all assets in the probate estate and their values must be filed with the court in the form of a probate inventory.
Another part of the estate proceedings is determining whether the estate is required to file federal tax returns. Personal representatives will likely file an income tax return for the decedent for the tax year of his death and for each year during probate if the estate has more than $600 in income during the tax year. Some probate estates also file an estate tax return for estate tax planning purposes or if the total taxable estate exceeds the applicable estate tax credit.
Just because the law requires that a tax return be filed does not necessarily mean that tax is due. The personal representative must retain sufficient funds to pay any taxes which may be due as the probate closes. The law permits the IRS, and in some situations the State of Florida, to collect unpaid taxes from the personal representative’s personal assets.
After payment of claims and resolution of any disputes, the personal representative distributes any remaining probate assets to the heirs named in the will. First, the personal representative distributes estate assets to satisfy any specific bequests in the will. A specific bequest is an instruction in the will to distribute a specific asset, such as real estate, or a fixed amount of cash, to one or more persons or a charity.
Often, estate beneficiaries will ask the personal representative to prematurely distribute assets of the estate. The personal representative may be held individually responsible for early distributions when the personal representative later learns that the money distributed is needed to pay estate expenses, federal taxes, or for required distributions. The personal representative should never distribute money to an heir without first contacting their attorney.
Closing the probate administration requires a formal accounting. The accounting includes all legally significant activities during probate administration, evidence that creditors’ claims and taxes have been paid, and a statement that the remaining estate property has been distributed in proper shares to the persons entitled under the decedent’s will. The proposed accounting is distributed to all beneficiaries who then have an opportunity to object.
Alternatively, the formal accounting may be waived by unanimous consent of the beneficiaries. Beneficiaries waive a formal accounting in most estates because the accounting can be expensive. The personal representative’s attorney files the formal accounting or accounting waivers with the probate court. The court reviews the accounting and other legal forms involved in closing the estate, and if all forms are in order, the judge will sign an order discharging the personal representative. This order effectively closes the probate case.