Formal Vs. Summary Probate Administration In Florida

There are two main probate types Florida law outlines for the final administration of estates. Formal probate comprises the proceedings typically associated with a “standard” probate process, and follows a tightly regimented set of steps that can be applied to almost any estate, with few exceptions. Summary probate, also known as summary administration, is usually faster by comparison but may not be an option in all cases. A consultation with Loughlin Law, P.A. may help you to understand your options regarding types of probate in Florida. Call 561-559-6214 to speak with a member of our team.

What Is Estate Administration?

When an adult dies, he or she typically leaves behind a “paper trail,” and many traces – legal, financial, and in recent years also digital – of their time on earth. The property a deceased person – also called a decedent – leaves behind is known as their estate, and estate administration is the process of gathering together the decedent’s records, identifying any creditors, paying the decedent’s final expenses and any other bills that were still outstanding on the day the individual died, notifying banks and retirement systems (if applicable) of the person’s passing, filing their final income tax returns, and distributing any property remaining after all obligations have been settled to their heirs or beneficiaries.

Estate administration may be testate, meaning the decedent left a valid Last Will and Testament, or intestate, meaning the individual died without a Will. In some jurisdictions, the term probate is reserved primarily for estate administration carried out according to the terms of a decedent’s Will, while intestate succession refers to the administration of an estate when the decedent has died intestate. In Florida, both processes are generally treated as types of probate under the jurisdiction of the local Probate Court, and although intestate succession may still be used to distinguish estate administration without a Will from the version directed by a testator’s documented wishes, in many respects families may find the probate comparison between summary vs. formal administration more helpful.

What Is Formal Administration?

To the extent that the average Florida resident has an automatic set of associations with the word probate, those associations for most people are likely to pertain primarily to formal administration. Formal administration is the type of probate proceeding most common in Florida, and the one available to the greatest number of estates.

Generally speaking, formal administration in Florida probate follows a few key steps. Becoming familiar with these steps can make it easier to compare the probate types Florida allows.

Filing the Petition for Administration

If the decedent left a Will identifying an individual they would like to serve as the personal representative of their estate (the role sometimes referred to in other states as the executor of the Will), then it may make sense for this person to take the lead, even at such an early stage – but it is important to note that the individual will not become the legally recognized personal representative of the estate until they have been formally appointed by the Probate Court, which must approve the testator’s nomination of a personal representative. If there is no Will, or the Will does not clearly identify the decedent’s preference in personal representative, then any member of the deceased person’s family may petition the court for administration.

Offering the Will for Probate

When there is a Last Will and Testament known to the family, it is very common to submit the Will for probate when petitioning for administration. In some instances the decedent may have gone through the steps to “self-prove” their Will under § 732.303, Florida Statutes, and in that case this stage of “proving” the Will’s validity may be expedited.

Serving Notice of Administration

One of the requirements for formal administration that personal representatives sometimes find arduous is serving notice of administration on interested parties (primarily those who may be entitled to a share of property exempt from probate). There may be some exceptions when “interested parties” have already been properly served with notice as part of pre-administration adjudication under § 733.2123, but as a general rule personal representatives in Florida formal probate should be prepared to navigate the requirements for legal service of notice. These requirements are not always difficult, but many people are not familiar with them unless they have previously been involved in some form of civil litigation, so the technicalities can be intimidating at first glance. An experienced Florida probate lawyer with Loughlin Law, P.A. may be able to walk you through the steps for serving notice of administration.

Publishing Notice to Creditors

The Notice to Creditors is distinct from the Notice of Administration served on members of the decedent’s family (or other parties who may have an interest in exempt property), and follows different rules. The Notice to Creditors is also one of the steps in the formal probate process that can lead full probate to take somewhat longer than summary administration, as the statutory guidelines for formal administration require the notice to run for a minimum of two weeks to give time for creditors to see the notice and respond by notifying the personal representative, in turn, of their claims. Two weeks may not seem like a long time, but generally you will wish to allow time for a letter mailed at the end of the publication period to arrive – and, of course, if creditors do come forward then their claims may take some time to verify and resolve.

Valuing the Estate

Conducting a brief valuation of the estate and balancing its accounts is not so much a legal requirement as a practical one. The next formal legal requirement after notice to creditors will generally begin the process of paying the decedent’s final expenses and resolving any outstanding tax obligations. The Florida Probate Code specifies an order in which payments must be made. The amount available to be distributed to beneficiaries, as directed in the decedent’s Will, typically depends to some extent on the portions already spent earlier in the process, so as general rule it is a wise idea to begin with a clean accounting of the estate’s assets and liabilities.

By the same token, some estate planning tools are designed precisely to avoid probate. In most instances there are failsafes in place to prevent assets meant to pass directly to their designated beneficiaries from being inadvertently treated as part of the probate estate, and ideally these non-probate assets will have been identified in the first stages of the formal probate process – but mistakes do happen, and personal representatives can often save themselves some later headaches by taking time at this stage to make sure all non-probate property has been identified and disposed according to whatever specifications apply to the type of property and the estate planning tool used.

Paying Final Expenses and Discharging Obligations

Accurately identifying all exempt property and seeing that it is distributed appropriately is crucial in part because § 733.707, Florida Statutes specifies a precise order in which the personal representative of an estate must discharge the financial obligations the decedent has left behind at their death. Non-probate property, such as homestead property devised in accordance with Florida law, death benefits from life insurance policies, and the assets held in certain types of trusts, is generally exempt from claims against the estate, and must therefore be excluded from calculations.

In cases where the decedent’s estate is more than sufficient to cover all outstanding debts and final expenses, then the accuracy of these calculations may not have serious consequences until the time comes to distribute the remaining assets to beneficiaries; in straightened circumstances, however, issues may arise much sooner, as 733.707(2) prescribes that all obligations in any “class,” as organized by 733.707(1) be satisfied before the personal representative may proceed to making the payments owed under the following class. If at any point the total value remaining for the estate is less than the amount that would satisfy all claims in the next class, then the personal representative is instructed to divide whatever value remains among the claimants in that class in proportion to their respective claims. Except in cases where there are orders for partial distribution, it is generally considered preferable to make sure that all classes with claims under § 733.707(1) have been satisfied before the personal representative moves forward with the disposition of property to beneficiaries under § 733.801-816, Florida Statutes.

What Is Summary Administration?

Summary administration is the simpler of the two probate types Florida offers, and as a general rule summary probate is generally a somewhat faster alternative to formal probate proceedings. These characteristics often lead both individuals preparing their estate plans and those appointed as personal representatives carrying estates through the probate process to express interest in summary administration, but in fact summary probate is only an option when certain criteria are met.

Is Summary Probate Required?

Any estate that is not excluded from “formal proceedings” for probate under § 735.301(1) may be administered through formal probate, which may be considered the “default” or standard Florida probate process. Only estates that meet the criteria for summary administration specified under Chapter 735 of the Florida Statutes, otherwise known as the Small Estates Probate Code.

Determining Eligibility for Summary Probate

An estate may qualify for summary probate administration when either of the following conditions apply:

• The decedent has been dead for more than two years
• The total value of non-exempt property in the estate does not exceed $75,000

In Florida probate cases where more than two years have passed since an individual’s death, generally determining eligibility for summary administration is a straightforward process, irrespective of whether any complications are likely to arise during the administration itself. However, summary administration due to time elapsed since the decedent’s passing is the less common of two qualifying circumstances, and it may not always be clear whether the value of the estate will be less than the threshold requiring formal probate until letters of administration have been issued and the personal representative begins taking account of all property in order to proceed with serving notice of administration to interested parties. In recognition of this practical reality, Florida law provides for any beneficiary or personal representative to file a petition for summary administration at any point in probate proceedings, if it becomes apparent that the estate is likely to qualify.

How Summary Probate Works

The steps involved in summary administration accomplish the same broad goals as those achieved by formal probate. The aim with summary administration, however, is to ensure that small estates with limited complexity in their assets may be administered as efficiently as possible. This means that, in a comparison between the two probate types Florida law permits, some of the steps in summary administration may appear “collapsed” in relation to the similar stages involved in formal probate.

Petition for Summary Administration

If the decedent left a Last Will and Testament, and the Will has not been admitted to probate prior to the petition for summary administration, then the personal representative or beneficiary filing the petition for summary administration will need to submit the Will to be “proved” (reviewed for legal validity) by the Probate Court. Assuming the Will passes muster, then a “shortened” version of handling creditors (compared to that required in formal administration) must follow before the order for summary administration can be granted.

Creditors’ Claims in Summary Administration

The party petitioning for summary administration is responsible for making the attempt to identify any creditors who might have a claim on the estate and serve them with a copy of the petition for summary administration. Assuming that there are sufficient assets available in the probate estate, the petitioner must make arrangements for satisfying any creditors’ claims before the order for summary administration is entered by the Probate Court.

Order for Summary Administration and Distribution of Assets

One reason why summary probate tends to be faster than its formal counterpart is that the Probate Court can proceed to enter an order for summary administration and direct the immediate distribution of assets to beneficiaries as soon as the petitioner shows that they have made an attempt to identify, and make provision for satisfying, any creditors with probable claims on the estate. As a result, beneficiaries are less likely to experience a delay in receiving the property “devised” to them in the decedent’s Will (or their inheritances, if the individual died intestate). However, this advantage in speed comes with a slight catch: Beneficiaries who receive prompt distribution of non-exempt property remain liable for claims against the estate by creditors who were not properly notified and provided for during the earlier stages of the process, up to the time limitations for creditors’ claims established under Florida law.

Speak With a Probate Lawyer in Palm Beach County

If you are preparing your estate plan, or preparing for the administration of a loved one’s estate, you likely have questions about the probate types Florida law provides. An essential point to keep in mind is that an estate can almost always be administered through formal probate, while summary administration is typically faster but is only available when an estate meets certain specifications. To gain the benefit of advice and perspective from an experienced Florida lawyer, consider reaching out to the Boca Raton office of Loughlin Law, P.A. Call 561-559-6214 today to schedule a consultation and get answers to your questions about summary probate.