Is “Full” Probate Required for Every Estate in Florida?
Probate is confusing to many, and the process can be quite lengthy. Fortunately, Florida has created alternatives to full probate that might be faster. The good news is that not every estate needs to go through formal administration (full probate). However, you need to check whether the estate qualifies for probate alternatives, because filing for the wrong type of administration can delay everything. Below, our Florida probate lawyer answers some of the most common questions regarding the probate process.
What is Full Probate?
Full probate is also called formal administration. You must go through formal administration if the probate estate is valued over $75,000 after excluding the Florida homestead exemption, there are outstanding creditors or unknown creditors and/or assets, or a Personal Representative is needed to finalize estate business. Full probate is used for both estates where the deceased had a will (called “testate” estates) and those where there was no will (called “intestate” estates).
Full probate involves admitting the will into probate and possibly hearing challenges to the will. The court will name a personal representative who administers the estate.
The personal representative must also publish a notice to creditors and review any claims submitted. Valid claims get paid out of the probate assets before assets are distributed to beneficiaries. Sometimes, when there is a dispute over whether a claim is valid, the issue gets presented in court.
Formal administration can take a year or more, depending on the complexity of the estate. Unsurprisingly, many people are looking for alternatives.
What is Summary Administration?
This is a faster probate proceeding. Under Florida law, you can use summary administration if either of the following applies:
- The value of the estate is $75,000 or less once you deduct exempt property, or
- The deceased passed more than two years ago.
If the estate qualifies, family members or the person nominated to be the personal representative can file a verified petition in probate court. The judge will review the petition, which must be filed with certain documents, like a death certificate.
If the court grants your petition, the judge will enter an order that distributes the probate assets to specific people. No personal representative is named, and the process takes roughly 1-3 months.
Should We File for Summary Administration if That is an Option?
It depends. We want to consider any creditor claims against the estate. For example, did your loved one have large bills or unpaid expenses? After two years, those claims are legally barred, so you can go ahead and file for summary administration without any fear of past debt owed.
But what if two years haven’t passed? As part of your petition, you need to certify that you don’t know of any outstanding debts or that you’ve made plans to pay them. If a creditor pops up down the road, you might be personally responsible for paying the debt. This is something to discuss with an attorney.
Can I Use Summary Administration if the Estate is Worth More than $75,000?
Yes, you can if the decedent has been dead for two or more years or the asset is exempt. If not, then you will need to go through the formal probate process for a larger estate.
What is Disposition of Personal Property without Administration?
This type of disposition does not require opening probate in court. You can only use it in very particular situations where there is no property that a creditor can reach. For example, your loved one could have died owing $5,000 on a personal loan. However, the assets in the estate are exempt either by the Florida Constitution or under Section 732.401 of the Florida Statutes. Because all assets are exempt, that means nothing is left over to pay a creditor.
You can also use disposition without administration if nonexempt property doesn’t exceed the amount of funeral expenses and medical/hospital bills to treat your loved one in the last 60 days of an illness. For example, there might be $4,000 left of nonexempt assets. However, there’s a hospital bill for $12,000. In that case, nothing is left over to pay anyone other than the hospital, so you can seek disposition without administration.
Do I Need a Lawyer for Disposition of Personal Property without Administration?
Probably not. The court clerk can help you fill out forms. However, you might benefit from meeting with an attorney to review whether this is an option in the first place.
What is Ancillary Administration?
This type of administration might be necessary when a non-Florida resident dies but has property in Florida. Think of a piece of real estate in the Sunshine State or money held in a Florida bank. You will need to request ancillary administration when these assets don’t automatically pass by law.
Confused? We Can Help Sort Out Your Options
Loughlin Law, P.A. is an established law firm offering probate services in Florida. If you have a question, please contact us today.