At Loughlin Law, P.A., we receive many calls from family members confused by the probate process. Below, we walk through some common scenarios to explain when formal administration is necessary or when you can use a simpler, shortened form. Contact us today to learn more. Most administrations require the help of an experienced probate lawyer, and we can discuss our services in more depth.
Does every estate go through probate?
No. Probate is only required for probate assets. If there aren’t any in the estate, then probate isn’t necessary.
Also, formal administration (what some people call “probate”) isn’t necessary in certain situations, especially when the estate is small or your loved one passed away at least two years ago.
What are probate assets?
Generally, probate assets are those owned solely by the decedent at death. These typically include:
- Real estate
- Bank accounts
- Investment accounts
- Other personal property
Some non-probate assets include life insurance policies, annuities, and individual retirement accounts, which usually have a beneficiary listed on the policy. But if the estate is listed as the beneficiary, then they are probate assets.
Can we avoid probate if the estate is worth $50,000?
Yes. The estate would qualify for summary administration if it is worth $75,000 or less or if the deceased passed at least two years ago. If the estate is worth only $50,000, then you can use this shortened form of probate.
Can we avoid probate if the estate is worth $100,000?
It depends. You don’t count exempt assets as part of the estate. In many cases, a person’s home is exempt as a Florida homestead, so its value isn’t counted toward the estate’s total value.
You also can use summary administration if the deceased has been dead for at least two years. That’s true regardless of the value of the estate.
Not counting an exempt homestead, the estate is valued at $200,000—must we use formal administration?
You can still use summary administration if the decedent passed at least 2 years ago. After two years, creditors can’t make claims on the estate. That means your loved one could have owed $10,000 on a credit card. But the creditor can’t make a claim to get paid after two years have passed. Consequently, summary administration is available.
Can we use summary administration if the deceased passed one year ago?
You can if the value of the estate (minus exempt assets) isn’t more than $75,000 in total. If not, then you can’t use it yet. You would need to use formal administration.
Can we ignore creditor claims if the estate is valued at less than $75,000?
No. You still need to plan to pay creditors. Even when you use summary administration, you can’t just ignore valid creditor claims. In fact, our state law requires that you make a “reasonable” search for any creditors and then arrange to pay, at least to the extent that there are estate assets available.
If you don’t search for creditors or arrange to pay valid claims, you can be on the hook. Please consult an attorney before rushing ahead with summary administration. In fact, you should hire a lawyer to handle the administration for you.
What if my loved one died without any assets?
If they didn’t own anything to their name, you can use disposition without administration. This is an informal process—even less formal than summary administration. You can typically file an affidavit with the court clerk.
My loved one had a car but also medical bills—what process do we use?
You can use disposition without administration if the value of the medical bills exceeds the value of any nonexempt property—in this case, the vehicle. The medical bills must have been necessary and reasonable to treat your loved one’s final illness in the last 60 days.
Essentially, nothing will be left over to pay creditors. For this reason, Florida allows a fast process.
*Two vehicles are usually considered exempt, so that may change the answer there.
My loved one had about $6,000 in assets at death—can we use disposition without administration?
You might. Under Florida Statutes § 735.301, you can if the only property left is exempt or if non-exempt property would be swallowed up by the cost of preferred funeral expenses and reasonable and necessary medical bills in the final 60 days.
Those $6,000 in assets might be exempt. Or the combined cost of funeral expenses/medical bills could exceed $6,000. You should review all paperwork with a lawyer carefully. If the estate doesn’t qualify, then summary administration might be an option for you. Consult an attorney.