When someone passes away owning assets in Florida, and those assets are solely owned by the decedent, then the decedent’s heirs, beneficiaries and creditors will have to deal with a Florida probate court in order to administrate those assets.
Florida probate law controls the distribution of real and personal property owned within the state’s borders. However, under our probate code, it is possible to transfer assets without having a full administration of the estate. There are summary proceedings which cut down on the amount of time and expense it takes to pay creditors and to transfer assets to the estate’s beneficiaries and/or heirs.
Florida Law Requires Probate of Florida Assets
Florida’s probate code can be found in Chapter 733 of our statutory laws. According to the code, the effect of probate is to prove title to, or the right to possession of, property of the decedent. The purpose of an estate administration, which is overseen by a probate court judge, is to insure that the decedent’s assets are properly located, gathered, and then distributed to the heirs and beneficiaries after the decedent’s creditors are paid or disposed of (including the Internal Revenue Service). See, Florida Probate Code, Chapter 733 of Florida Estates and Trusts.
The Probate Process
A large part of the code is dedicated to the formal administration of a decedent’s estate, which can be a lengthy process. The determination to use the type of administration is made based upon a number of factors, including the value of assets as well as the type of holdings the decedent owned at the time of his or her death.
However, there are many situations where a full formal probate administration is not needed. So, Florida law also provides two options to avoid a formal administration. It is up to the decedent and his or her estate planner, as well as the personal representative appointed to represent the estate, to evaluate and consider whether or not these alternatives are available and should be used by the beneficiaries.
1. Formal Administration in Florida Probate
Probating an estate of solely owned assets is mandatory under Florida law in order to legally transfer ownership of the decedent’s assets to his heirs or beneficiaries, and to satisfy the debts of the decedent. Under the code, the location of the probate administration shall be as follows:
- In the county in this state where the decedent was domiciled.
- If the decedent had no domicile in this state, then in any county where the decedent’s property is located.
- If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.
If the decedent had a will, the will must be deposited with the probate court and administrated in accordance with the last wishes of the decedent.
If the decedent died without a valid legal will, then the probate process will occur pursuant to the Florida intestacy statutes.
Any interested party (e.g., beneficiary or creditor) can petition the Florida Probate Court for a formal administration of the decedent’s estate. Florida Statute 733.202.
In a formal administration, a Florida circuit court judge presides over probate proceedings. He or she first rules on the validity and the admittance to probate of the Last Will and Testament and then appoints a personal representative, who is likely the person named in the will. In the petition for administration, the identity of the heirs are listed along with a general description of the assets of the estate.
The probate judge will issue ‘Letters of Administration’ to the Personal Representative. These Letters grant the personal representative the legal authority to administer the estate on behalf of the decedent.
Periodically, there are filings that must be made within certain deadlines, like the estate inventory which must be filed within 60 days of the issuance of the Letters of Administration. There is also the publishing of a notice to creditors which is announcement, published in a local paper, that the decedent has died and that anyone who has a claim against the estate must file a claim within 3 months of the publishing of the notice of creditors or their claim will be forever barred.
At the end of a formal administration, the personal representative must file an accounting and serve the accounting on the beneficiaries setting forth all of the money that has come into the estate, what money has been paid from the estate as well as other transactions like capital transactions. Additionally, the personal representative will file a petition for discharge which will include a plan of distribution and a schedule of all money paid to any professional providing services to the estate including attorneys and the personal representative. Alternatively, a beneficiary can sign a waiver, waiving in whole or in part, the requirement to prepare a final accounting and the filing of other documents in the estate, like the plan of distribution and receipts from the beneficiaries.
2. Summary Administration
An alternative to the full formal administration of a Florida probate estate is called a “Summary Administration.” The Florida probate code provides for this procedure in Florida Statutes 735.201 – 2063.
Here, no personal representative is appointed by the court. The petitioner, and not a personal representative, for the Summary Administration locates the assets, disposes of the probate assets and pays the creditors (if any).
The petitioner files a petition with the probate court and includes the Death Certificate and will. The petition must be verified and otherwise follow the requirements of Florida Probate Rule 5.530.
Each beneficiary must sign the Petition for Summary Administration. If one or more of the named beneficiaries in the Last Will and Testament has passed away, then his or her Death Certificate must be filed with the Petition.
The petitioner also submits proposed orders for the probate judge’s consideration. These are all submitted simultaneously and include:
- Order Admitting Will
- Order of Summary Administration
- Order Determining Homestead (when applicable).
The will is admitted to probate just as it is done in a formal administration. However, the summary administration is simpler and less costly than a full, formal probate of the decedent’s estate.
In a Florida Summary Administration, the formal probate process is avoided but this option is not available for every decedent’s estate. This summary probate procedure is available if:
- The Last Will and Testament does not bar the Summary Administration option.
- The decedent has been dead for two years or more and the estate has not been probated.
- The value of the Florida estate subject to probate (i.e., excluding exempt property like the decedent’s homestead) is no more than $75,000 in value and:
- The decedent had no outstanding debts or
- The decedent had debts but the creditors do not object to a summary administration.
For heirs and beneficiaries, the choice of a summary administration may sound like a good idea. It’s easier and cheaper than a formal probate. There’s a significant drawback to those inheriting the estate, however: they remain liable (pro rata) for any claims that may be made against the decedent’s estate for a full two years after the decedent’s date of death. Also, no party is appointed to have the authority to act on behalf of the decedent. Thus, no financial institution, insurance company, or similar company will communicate about the decedent based upon privacy laws.
3. Disposition Without Administration
The second alternative to a full formal administration of a decedent’s estate in Florida is to have “Disposition Without Administration.” Like the Summary Administration, there are only select estates that will be able to proceed under this alternative. Florida Statutes 735.301 – 302 govern this process.
These estates are those where:
- The decedent’s probate estate assets are either exempt from creditor’s claims or their value totals less than (1) the total of preferred funeral expenses; and
- (2) the reasonable and necessary medical and hospital expenses incurred in the final 60 days of the decedent’s fatal illness.
Specifically, under Florida Statute 735.301, Florida law allows the beneficiaries of a very small estate where the decedent owned no real estate or land in the State of Florida to have a fast and inexpensive probate of that person’s estate.
The personal property must be exempt (1) under Florida Statute 732.402 or (2) constitutionally exempt from creditor’s claims under state constitutional provisions (i.e., homestead protections). Florida Statute 735.301.
Additionally, if the decedent left personal property that is eligible for probate administration, i.e., “non-exempt property,” then it must not have a value exceeding the sum of (1) the amount of preferred funeral expenses and (2) reasonable and necessary medical and hospital expenses of the last 60 days of the last illness. Florida Statute 735.301.
For beneficiaries seeking a Disposition Without Administration, they can make their request to the proper probate court. A probate lawyer is not necessary to seek this type of administration.
Instead, the interested party may send a letter, affidavit, or other written request to the probate court. The probate judge will consider it and determine if the guidelines for a Disposition Without Administration are met.
If the probate judge agrees with the request, then by letter or other writing under the Seal of the Court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.
Note: under Florida Statute 735.301(3), anyone (a person or company) transferring, paying, or delivering property pursuant to the official authorization is legally immune from being liable for doing so.
Federal Income Taxes and the Disposition Without Administration
In some cases, there may be the complication of federal income tax refunds due and owing to the decedent whose estate is being finalized under Disposition Without Administration.
What happens to that Federal Income Tax Refund is determined by Florida Statute 735.302
If the IRS determines a refund is due to the decedent that is less than or equal to $2,500, then the refund goes:
- Directly to the surviving spouse on his or her verified application; or
- If there is no surviving spouse, to one of the decedent’s children who is designated in a verified application purporting to be executed by all of the decedent’s children over the age of 14 years.
Before the refund will be sent, there must be confirmation that the Application for Disposition Without Administration confirmed to the probate judge that:
- the decedent was not indebted or provision was made for the payment of the decedent’s debts; or
- the entire estate is exempt from the claims of creditors under the constitution and statutes of the state; and
- that no administration of the estate, including summary administration, has been initiated and that none is planned, to the knowledge of the applicant.
Florida Probate Lawyer
If you or a loved one have questions concerning the probating of a decedent’s estate, regardless of whether or not there is a valid Last Will and Testament to be filed, then having the guidance of an experienced Florida probate lawyer or estate planning attorney can be important. It may be possible that you can avoid the full formal probate administration of the estate if certain legal conditions are met.
Most Florida probate lawyers, like Larry Tolchinsky, offer free initial consultations (over the phone or in person, whichever you prefer) to answer your questions.
Do 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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