Probate is a legal proceeding for dealing with the assets of a deceased person (decedent). The probate process typically includes:
- Establishing the validity of the Last Will and Testament (if any);
- Appointing someone to serve as personal representative of the estate;
- Gathering and inventorying the decedent’s assets;
- Disposing of all debts of the decedent; and
- Distributing the balance of the decedent’s assets to his or her beneficiaries or heirs at law.
Not all Florida probate proceedings are the same. Florida probate law recognizes several different means of disposing of a decedent’s assets, each of which depends on the circumstances involved. Florida probate alternatives include formal, summary, and ancillary administration, as well as disposition without administration.
Florida Probate: Formal Administration
Formal Administration is the most common form of Florida probate proceeding. If an estate does not qualify for one of the other methods discussed below, it must be formally administered. In formal administration there is close court supervision of the collection and distribution of the decedent’s assets. For more information on this type of probate, see our article on Formal Administration in 10 Steps.
Florida Probate: Summary Administration
Summary administration, also known as family administration, is well-suited to small estates. The assets of the estate are immediately distributed to beneficiaries and creditors upon the entry of the order admitting the estate to probate. In order for an estate to qualify for summary administration, either:
- The decedent must have been dead for more than two years, or
- 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.
Also, a testate estate does not qualify for summary administration if the will specifically directs formal probate.
Summary administration requires much less time, effort, and expense than formal administration. The proceedings are begun by filing a petition for summary administration. This petition may be filed by any beneficiary or by a person nominated as a personal representative by the decedent’s will, but must be signed and verified by the surviving spouse. The probate rules require that the petition include facts showing that the estate is eligible for summary administration, a list of assets and their values, certain information about the estate’s debt, and a plan for distributing the assets. Once the court receives the petition and is satisfied that the estate qualifies, the court issues an order distributing the assets.
Florida Probate: Ancillary Administration
Ancillary administration is the administration of the estate of an out-of-state resident who leaves real or personal property in Florida, has credits due him from Florida residents, or has liens on property in Florida. It is procedurally similar to a formal probate proceeding. In this type of proceeding, the out-of-state probate is referred to as the domiciliary and the Florida proceeding is called an ancillary administration.
There are a few alternatives in ancillary proceedings that may allow the you to forgo formal administration. If the decedent has already had a probate proceeding in another jurisdiction and leaves only real property in Florida, then the real property can be distributed without administration. All that is required is for any person to file a petition to admit the foreign will to record. This must be done after the discharge of the domiciliary personal representative or after two years from the death of the decedent. After the petition is admitted, the will passes title or interest to the real property in Florida as if by probate.
Similarly, ancillary probate may not require a formal proceeding if the decedent’s Florida property is worth $50,000 or less. After the domiciliary probate has concluded, the personal representative can file an authenticated transcript of the domiciliary proceeding to validate the will and identify the beneficiaries of the estate.
Florida Probate: Disposition Without Administration
No formal proceeding is required if the decedent’s estate leaves only personal property, and the property is either (1) exempt under certain Florida laws; (2) exempt from the claims of creditors as part of the homestead under the Florida Constitution; or (3) worth no more than the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last sixty days of the decedent’s last illness.
Eligibility for disposition without administration is shown by supporting documents, including copies of medical bills, funeral bills, and a description of the property owned by the decedent. If the court decides that the assets may be disposed of without an administration it will issue a formal authorization of the transfer of assets to the persons entitled to receive them.
About Jeramie Fortenberry
