Is Probate Required in Florida? An Experienced Florida Probate Attorney Answers

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By Gary M. Landau, Esq.

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Is Probate Required in Florida? Experienced Florida Probate Attorney Answers | Call (954) 979-6566

Many people in Florida don’t realize that when a loved one passes away and has left you or other relatives their assets–including money, real estate, and personal property–these items generally do not pass on to you automatically. Instead, a judge and a court usually approve the asset transfers through the process known as probate.

As a South Florida probate attorney with over 25 years of experience helping clients navigate the probate process, I understand the concerns and questions you may have about Florida probate. Our team at the LAW OFFICE of GARY M. LANDAU, P.A. includes experienced attorneys and paralegals with extensive knowledge of the various issues that can arise throughout the process. We handle probates in every Florida county.

Is probate required? How does it work? Do you need a knowledgeable probate attorney to guide you through Florida probate rules? This blog provides an overview of Florida probate and answers those specific questions. Keep reading to learn more, then contact us at (954) 979-6566 if you are ready to schedule a free consultation.

What Is Probate?

Probate is the process of distributing the assets of a person after they die, known in the courts as a decedent. These assets may be distributed according to the decedent’s last will and testament (the ideal situation) or according to Florida state law if the person did not have a valid will.

During the Florida probate process a judge must approve the will and the accompanying legal documents. A knowledgeable Florida probate attorney can help you navigate your probate administration to ensure it transpires as quickly and smoothly as possible.

Should I Wait to Start a Florida Probate?

Like many other states, Florida permits heirs to initiate the probate anytime after a loved one’s passing. There are practical reasons for starting this process promptly, within days or weeks of their death.

Starting early allows heirs to more easily compile the inventory of the deceased person’s assets needed by the court because family members often remain together or attend the funeral or to grieve. This is useful because various relatives may have knowledge about different assets the person held.

Additionally, if the heirs want to sell the decedent’s home, this cannot happen until the probate is open and specific steps are taken. Meanwhile, heirs must make mortgage payments and pay taxes and repair bills on the home.

Moreover, the faster the probate process is started, the sooner it can be completed. In many cases probates take time, often several months or longer. Heirs cannot receive their full inheritance until the process nears completion.

However, in certain cases, waiting to begin the probate process has its advantages. If you don’t immediately need the money, for example, by waiting two years after the person’s death you can submit the probate to the court under a faster and cheaper form of administration, and without being required to pay the bills the decedent may have owed during their lifetime.

Each probate situation is different, so which type of probate is right is an individualized decision best made between you and your Florida probate attorney.

What are the Four Types of Florida Probate?

There are four options for how estates are administered in Florida’s probates courts: Formal Administration, Summary Administration, Ancillary Administration, and Disposition without Administration. Understanding the differences between them can help you select the right option for your situation.

Formal Administration is the most common type. This involves close court supervision throughout the process. This route is necessary when the estate’s assets exceed $75,000 and it has been less than two years since the decedent passed away. When determining probated assets, certain things are not counted, including life insurance policies, bank or stock accounts that have a named beneficiary, and real estate that is owned jointly.

This court-supervised process includes opening the estate, appointing the personal representative, notifying creditors and giving them time to file claims, filing an inventory of assets and other paperwork with the courts, distributing assets, and ultimately closing the estate. Sometimes, the attorney must make courtroom appearances, even in the absence of a contested will. Formal administrations often take several months or longer.

In certain cases, estates may need to file a federal tax return and pay estate taxes, but this is required only for estates worth many millions of dollars. Florida has no state taxes, but if the person legally resided elsewhere state estate taxes may also need to be filed.

Summary Administration offers a faster and more cost-effective approach. This option is available if the estate’s assets are valued at less than $75,000 or if the person has been deceased for more than two years regardless of the size of their assets. With summary administration, some steps from the formal process can be skipped or expedited, resulting in a faster process as well as lower court fees and attorney costs.

In some cases, waiting two years to qualify for summary administration may be favorable, even if the estate has significant value. (More on this below.)

Ancillary Administration applies to out-of-state residents who own real estate in Florida. Because the primary probate takes place in their home state, this additional probate applies only to their Florida property. This can often be completed without the need for beneficiaries to travel to the state, although in some cases the person may need to post a bond with the courts.

An Ancillary Administration can be Formal or Summary, based on the property’s size and other factors.

Disposition without Administration is a legal procedure for disposing of a decedent’s assets without an official probate. It applies only in specific, limited circumstances for very small estates, and therefore, it is rarely employed.

When Should I Consider Summary Administration?

As experienced probate lawyers can attest, timing is everything when it comes to the types of probate available in Florida. Below are some considerations.

  • Big debts? Consider a summary administration.

If the deceased person had substantial debts, opting to wait two years to be able to file a summary administration may save heirs a significant amount of money. Unlike with a formal estate, creditors do not need to be notified or paid with a summary administration, as their claim period becomes invalid after two years.

However, during the time you are waiting, a creditor could potentially open a probate for the deceased person, in which case you will likely have to pay the debts.

  • When it’s nearly two years since the person died, consider waiting.

When a deceased relative has been gone for nearly two years and no probate has yet been opened, we generally advise them to consider waiting until the two-year mark, because this will enable them to file a summary administration.

Our law firm recently had a client where we made this recommendation, but the client insisted on filing the probate a year and a half after the person’s death. Unfortunately, Florida courts have inevitable delays, and in this case the process did not conclude until after the two-year mark had passed. This meant they unnecessarily incurred the hassle and expenses of a formal administration and, more importantly, had to pay all of the decedent’s outstanding creditors.

Contact us to learn more about whether waiting for the two-year mark is right for your probate process.

  • Out-of-state Personal Representative? Consider waiting.

Florida law has specific requirements for who can serve as a personal representative, which is the person named in the will who oversees the probate along with the attorney. A non-relative who resides outside of Florida cannot fulfill this role. The law does permit out-of-state relatives to be personal representatives, but it may require them to post a costly bond to do so.

If the decedent’s will names an out-of-state family member to be the personal representative, it may pay to wait for the two-year mark to perform a summary administration.

  • Selling the home? Generally don’t delay!

If the estate’s main asset is the home and the heirs plan to sell it, it often doesn’t make sense to postpone probate, since keeping up with mortgage costs, taxes, and other expenses for two years can create significant financial burdens.

However, if an heir plans to live in the home, they could assume responsibility for the costs. In such cases, the heirs may choose to conduct a summary probate later.

What are the Steps Involved With All Probates?

Some commonalities exist within the primary probate types. These probates usually involve the following steps:

  • Filing the Last Will and Testament (if there is one) with the court.
  • Finding all the decedent’s assets, including real estate, bank accounts and stock portfolios without a pay on death beneficiary, cars, valuable artwork, jewelry, and more.
  • Paying the final hospital bills and funeral costs.
  • Distributing the deceased’s assets to his or her beneficiaries according to the terms of their will and/or state law.

A seasoned probate attorney can help you streamline the process according to Florida probate law and make the most informed decisions for your unique circumstances.

Can Florida Probate Lawyers Work with Out-of-State Clients?

Our firm’s probate clients, the heirs to the decedents, live everywhere in Florida as well as outside the state or country. We also handle probates when the decedent had lived in any county in Florida.

The county where the probate must be filed is based on the place where the decedent resided or where their primary assets are located. With extensive knowledge of Florida statutes, experience with the documents and requirements in courts in all counties in the state, and solid relationships with court personnel, the Law Office of Gary M. Landau is well positioned to handle probates everywhere in the state of Florida.

What Qualities Should You Look for in a Florida Probate Lawyer?

You want a lawyer who can clearly explain the process and help you decide which type of administration is best for you. And you want them to have deep experience in the probate process. A general attorney who handles a few probates a year is not going to know how to navigate tricky situations the way lawyers who do this day in and day out understand.

What’s more, navigating the probate process can be fraught with emotion, so we support our clients emotionally as well as legally.

Work with an experienced estate attorney to smoothly handle your probate needs when a loved one has passed away. And if you have not yet done your own estate planning, contact an attorney soon to draft a valid will and other documents.

Contact the LAW OFFICE of GARY M. LANDAU, P.A., Experienced Probate Attorney Based in Coral Springs, Florida

Have you been searching online for a Florida probate lawyer?

With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

Copyright © 2023. 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.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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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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