How Does Florida Probate Law Work?

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By Gary M. Landau, Esq.

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How Does Florida Probate Law Work? | Call (954) 979-6566

Many people don’t realize that when a loved one dies and they are named in the person’s will as the recipient of the assets, the money, real estate, and personal property don’t automatically get handed to them. Instead, these asset transfers have to be approved by a judge. This is done by working with an attorney through the legal process known as probate.

Is It Better to Wait to Probate?

Like many states in the country, Florida allows heirs to begin a probate for a deceased relative or friend as soon as the person passes away. Often, there are sound reasons for starting the process within several days or weeks of the person’s passing.

For one thing, by starting early heirs can begin to write an inventory of all the estate’s assets–a requirement for a probate–while the whole family is gathered to grieve or attend the funeral, since different relatives might know different bits of information about where various assets are held. What’s more, the person’s home cannot be put up for sale until several steps are taken in the probate process, meaning the heirs need to keep paying mortgage payments and taxes during this time.

And of course, the sooner the probate is started the sooner it can be finished. This is important because probates take a while to wend their way through the courts, typically months or longer. Heirs cannot receive their inheritance until the process is close to complete.

In some cases, however, it makes sense to wait a substantial amount of time to begin the probate process. This is because Florida law allows for two different types of probates, and waiting can enable the heirs to choose one type of probate over the other.

The Two Types of Florida Probate

Formal Administration. With a formal administration, the state requires more legal paperwork and the courts must more closely supervise the process. Formal administration is required when an estate’s probatable assets exceed $75,000 and it has been less than two years since the person passed away.

The formal administration process involves the following steps:

    • The official opening of the estate with legal paperwork
    • The appointment of a personal representative (PR) in charge of overseeing the estate
    • Allowing creditors to file claims during a set period and then paying all legitimate claims
    • Filing all final legal paperwork with the courts documenting all assets and that every heir has been contacted
    • Distributing assets following the court’s approval
    • Closing the estate, also with the judge’s acquiescence.

In some, albeit rare, cases, estates must also generate and file a federal tax return and pay required estate taxes. Per the most recent law, though, this covers estates only when they are worth more than $11.18 million for a single individual.

Due to the numerous steps involved, formal administrations are more time consuming and incur more court and legal fees than the second type of Florida probate, a summary administration.

Summary Administration. In a summary administration, some of the steps required for a formal are skipped or compressed.

To qualify for a summary administration, an estate’s assets must be valued at less than $75,000, or—and here’s where the timing comes in—the person must be deceased for more than two years.

Because a summary administration moves more quickly through the courts it involves lower court and attorney fees.

That’s why in some instances it pays to delay a Florida probate filing for the two years, so that you can file a summary administration even if the estate is large.

When to Wait for a Summary Administration

These are some of the instances where it may especially make sense to delay filing a probate until the two-year mark has passed:

#1 The estate owes substantial money to creditors.

When a formal estate is opened, the personal representative must publish notice of the death in the newspaper to inform companies and individuals to whom the deceased person owes debt. Creditors then have 90 days to submit a claim to the estate.

By contrast, in a summary administration there is no requirement to notify creditors. That’s because the creditor’s claim period is no longer valid after the two years have passed.

If the deceased person’s debts were significant, a summary administration can save heirs a substantial amount of money.

It’s important to note, however, that any creditor who holds the deceased’s debt can open a probate themselves in order to collect what is owed. Although this happens only rarely, it is always a possibility.

#2 The estate’s only asset is the home, and you or your siblings plan to live there.When heirs want to quickly sell the deceased person’s home, it rarely makes sense to delay the probate. During the delay the heirs will need to keep paying mortgage costs, maintenance fees, taxes, insurance, repairs, and all of the home’s other expenses.

However, if any of the heirs plan to live in the home, they will need to be paying those costs anyway. (Of course, all the other heirs need to agree that the heir can live there.) For example, our firm recently had a client who had moved into his father’s house to help take care of him while he was still alive. After the father’s death, this man, the only heir, decided he wanted to continue to live there. In this case, the home’s expenses weren’t an additional burden but simply the homeowner costs he had already been paying.

Then, years later, when the heirs are ready to sell the house, a summary probate can be performed to transfer the deed for legal conveyance to a buyer.

#3 The Personal Representative named in the will lives out of state.

Florida law has particular requirements for who can serve as a personal representative (PR). For example, a non-relative who does not live in Florida cannot serve as a PR, even if the deceased person designated them in their will..

If the individual is a relative but resides in another state, Florida courts do allow the person to serve as PR. However, they generally require an out-of-state PR to post what is known as a bond, which is money paid by the PR to a bonding company. Since these bonds can be costly, if an out-of-state relative is the PR designated in the will, waiting until you can do a summary administration avoids this inconvenience and expense.

#4 It has been nearly two years since the person died.

Clients often come to the Law Office of Gary M. Landau seeking to do a probate for a relative who passed away more than a year before. Because a formal administration can take months to complete, we let them know they may want to wait until the two-year mark has passed to save themselves money.

Sometimes clients choose not to wait and are later sorry they didn’t. In one case, the client was eager to file the probate and didn’t want to wait, even though the person had died a year and a half before. Due to typical probate court delays, the probate was not completed until after the two years had passed, meaning it incurred the costs of a formal administration without the benefits of speed.

Have Questions about Florida Probate? Contact the Law Office of Gary M. Landau, P.A. in Coral Springs, FL

A knowledgeable probate lawyer can ensure that all your legal documents and a loved one’s probate process are performed properly and efficiently.

The Law Office of Gary M. Landau, P.A., has over 25 years of experience with wills, probates, and other legal services. The firm serves clients in Broward and South Palm Beach counties but also handles probates everywhere in the state of Florida, and has filed probates in nearly every county in the state.

For more information or to discuss your particular matter, call our offices at (954) 979-6566 or complete our online form today to schedule a consultation at no cost. The Law Office of Gary M. Landau is located in Coral Springs, Florida. We can work with you in person, over the phone, or on Zoom.

The Law Office of Gary M. Landau, P.A is rated 10 out of 10 by the legal websiteAVVO.

Copyright © 2022. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

 

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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