What is a Summary Administration Under Florida Probate Law?

Posted By on August 17, 2016

Sometimes, probating someone’s estate can be complicated. It can take a long time and lots of money because of all of the rules and procedures that must be followed. Beneficiaries and creditors are usually eager to try and limit these issues — especially if no one is contesting anything and the plan of distribution is straightforward.  Why go through all of the formalities of a formal probate if the estate is small (in terms of the value of the estate assets) or there isn’t much debt in the estate?

Is there a way to handle transferring the estate assets and deal with the creditors of the decedent without having to go through the formal probate process?

 

Summary Administrations Can Circumvent the Usual Court Process

 

Florida Summary Administrations

In Florida, a summary administration is an alternative procedure for probating an estate and disposing of the decedent’s assets and debts. Essentially, it is an option to the formal probate process which is less costly and can allow for an expedited transfer of assets to the beneficiaries. However, as provided by statutory limitations, it is only available for certain estates (usually smaller estates).

In order to best explain the procedure, below are some common questions that clients have asked over the years related to summary administrations. Some of those questions include:

1. Does the decedent have to be a Florida resident at time of death in order to qualify for a summary administration?

No. Florida law allows for a summary administration for either a resident or nonresident.

2. Does the value of the estate matter?

Yes – sometimes. There is a limit to the total value of the estate to be probated in Florida and the magic number here to qualify for summary administration is $75,000.00.

If the net value of the estate subject to Florida probate laws is less than or equal to $75,000 then it is possible to request a summary administration. How is the net estate value calculated here? It is the value of the estate’s property after the creditors’ claims have been deducted from it. Florida Statute 735.201(2).

However, if the decedent has been dead over two years and the estate subject to Florida probate has yet to be probated, then summary administration is available regardless of the estate’s value. Florida Statute 735.201(2).

3. What if the Last Will And Testament specifies how probate should be administered?

If the decedent’s will provides for estate administration in its terms, then summary administration will not be allowed by the Probate Judge. The testator’s wishes will be respected and the probate will continue with a formal administration as required by Chapter 733 of the Florida Probate Code. See, Florida Statutes 735.201(1); 733.101 to 733.903.

Probate judges, as a general rule, will not replace the wishes and directives of the testator as explained in their Last Will and Testament with those of the court, or of a beneficiary, or of a creditor (even if they argue it would save money).

4. Is a Summary Administration something available only to those who die without leaving much property or assets behind?

No. With proper estate planning, someone with great wealth can provide for their loved ones and pass on their property In such a way that their estate can take advantage of a summary administration.

Even though the decedent enjoyed great prosperity prior to his or her passing, with things like inter vivos trusts and other estate planning tools, a summary administration is viable for their probated estate, too. Summary administrations are for small estates – and sometimes, estate planning works to leave a small amount of property for probate purposes because the majority of the decedent’s assets and debts have been provided for in other ways.

For example, in Ford v. Ford, 581 So. 2d 203 (Fla. Dist. Ct. App. 5th Dist. 1991), the decedent’s estate was eligible for a summary administration because Gilbert Ford had instituted an estate plan. His advanced planning had placed most of his property into a trust with his wife (now widow) named as its only beneficiary. Most of his property went into that trust. The only property left for probate after Mr. Ford’s passing was some personal property; hence, his estate met the net value qualifications for a summary administration.

5. Do you have to decide on a summary administration immediately?

No. It is possible to start the administration of an estate in the Florida probate courts, and then determine as things are progressing that it might be best to opt for a summary administration.

Under Florida law, a summary administration can be requested of the Probate Court at any stage of the estate’s administration.

Key here: the estate must qualify as it existed at the time of filing. It is not possible to begin the probate process, distribute significant assets, pay off debts, and then when things get under that $75,000 cap to switch the administration to a summary administration.

Either the estate qualifies as of time of filing or it does not. Florida Statutes 735.2055.

6. Who can request a summary administration of a Florida estate?

It’s not just the personal representative named in the Last Will and Testament that can ask the Probate Judge to allow a summary administration of the estate.  Any beneficiary named in that will can also file the request.

However, a petition for a summary administration has to be signed with a verified signature by the beneficiary requesting a summary administration as well as the surviving spouse (if there is a widow or widower here), and the other beneficiaries. Florida Statute 735.203(1).

These signatures are also needed by the personal representative if he or she is filing the request for a summary administration.

Exception here: joinder of all these interested parties isn’t needed for a beneficiary who is requesting a summary administration and who is to receive a full distributive share under the proposed distribution. Florida Statute 735.203(1). Here, this beneficiary needs to send formal notice of the petition on any beneficiary not shown as joining in the request. Florida Statute 735.203(1).

Note that if the request for a summary administration is made at the beginning of the probate process, then there may never be a “personal representative” of the estate.  There is no legal requirement for a personal representative in a summary administration.

However, if the probate process begins and the appointed personal representative determines it is in the best interests of the estate to request a summary administration, then the personal representative will have a fiduciary duty to file that formal request with the probate judge.

7. What if there are minor beneficiaries?

If the decedent has left property to people who have not reached the age of majority under Florida law (usually these are the decedent’s children or grandchildren), then a summary administration is still possible even though they themselves cannot legally act to request or to approve the summary administration.

Here, the petition for a summary administration is signed and verified by the minor’s legal guardian. This can be their remaining parent, for example.

8. What if a beneficiary under the Last Will and Testament has died?

Here, if the person who is named as a beneficiary under the Last Will and Testament has passed away, then the summary administration can still take place. The petition generally is signed and verified by the personal representative of the deceased beneficiary. Florida Statute 735.203(1).

9. Does the Last Will and Testament Have To Be Proved in a Summary Administration?

Yes. When a petition for summary administration is filed, this does not mean that the Last Will and Testament will receive any less respect from the probate court. The same laws and statutory provisions that exist to protect the sanctity of someone’s last wishes will still stand.

And when there is a request for summary administration, the Last Will and Testament still must be proved in accordance with Chapter 733 of the Florida Probate Code and then officially admitted to probate. Florida Statute 735.206.

Moreover, in a summary administration, as in any probate administration, there must be a diligent search made for creditors. All known or reasonably ascertained creditors must be served with a copy of the petition for summary administration. Provisions must be made for these creditors to be paid (if there is money to do so). Florida Statute 735.206(2).

10. Can Beneficiaries Receive Their Inheritance Faster in a Summary Administration?

Yes. In a summary administration, the probate judge is able to order the immediate distribution of an asset to the person named as beneficiary under the Last Will and Testament. Florida Statute 735.206(2).

11. How Are the Decedent’s Creditors Notified in a Summary Administration?

Once the probate judge grants a summary administration, a formal Notice to Creditors can be published in a local publication designated by the courts (this is the same requirement used in a formal probate proceeding). See Florida Statute 733.2121.

Just because there is a summary administration does not mean that creditors get less protection. As in any probate matter, it is required that the personal representative, or the petitioner for the summary administration, notify anyone with a claim or demand against the decedent that the Probate Judge has approved a summary administration of the decedent’s estate. Florida Statute 735.2063(1).

The notice to creditors has to include the total value of the estate and the names and addresses to whom it has been assigned by the order allowing the summary administration. Florida Statute 735.2063(1).

Once proof is filed with the probate court that this notice to creditors has been published, then any claims or demands of a decedent’s creditor who isn’t known or reasonably ascertained is BARRED FOREVER unless that creditor shows up and files his or her claim or demand within 90 days of the first time the notice was published (the initial publication date). Florida Statute 735.2063(2).

12. Who Gets Paid First in a Summary Administration – Beneficiaries or Creditors?

As in any probate matter, creditors that have properly vetted debts will have those debts paid from the estate’s assets before any inheritance is distributed. This includes the taxing authorities.

In fact, the Florida statutes provide a specific set of directions on who gets paid what, and when, in a summary administration. This is called the “order of distribution.”

It is found in Florida Statute 735.206(4) and includes the following provisions:

  1. Those who owe money or property to the decedent (debtors of the decedent). They can be ordered by Probate Judge to pay, deliver, or transfer what they owe to specific persons and these debtors are then not be accountable to anyone else for the property.
  2. Any bona fide purchasers for value of property of the decedent. Here, the probate judge’s order can direct they shall take the property free of all claims.

13. Can a Summary Administration Be Used if The Only Asset is the Decedent’s Homestead?

Yes –  The answer is also yes even if the decedent has creditors. The party petitioning for the summary administration may also file a petition to determine homestead to protect the property from the claims of creditors.

Should You Consider a Summary Administration?

Whether or not you should consider a summary administration of a Florida estate will be a question that is asked in times of (1) estate planning and (2) grieving the loss of a loved one who has left behind an estate here in Florida.

In either situation, it is important to have an experienced probate attorney who can help you consider your alternatives under the Florida probate process and assist you in resolving those issues that may arise throughout the process of probating an estate and distributing property after death.

The option of a summary administration is a welcomed alternative for many. If you are planning your estate, then this is an option to consider as you decide how best to leave your property to your loved ones. If you are an heir or beneficiary that is facing the sometimes intimidating probate process, the ability to have a summary administration of your loved one’s estate can be welcomed news.

A good piece of advice if you have any questions about a summary administration is to at least talk with a Florida probate lawyer to learn about your rights. Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.

For more on how summary administrations work, visit our website page: Florida Summary Administrations

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Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
 
 
 
 
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