What Are the Four Types of Probate Proceedings in Florida?

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By Gary M. Landau, Esq.

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What Are Four Types of Probate Proceedings in Florida? | Call (954) 979-6566

When a person dies and their assets need to be distributed to their heirs, that is done through the process of probate. In Florida, there are four different ways that probates are administered. Which is right depends on circumstances such as the size of the estate, the length of time the person has been deceased, and where the person was living when they died.

Each of these types of probate proceedings have some common elements, but others are unique.

All probates go through these four stages:

  • Ensure that the person’s Last Will and Testament (Will) was done according to Florida law (assuming there is one).
  • Gather and document the decedent’s assets, which includes real estate, bank accounts, stock portfolios, cars, valuable artwork, pricey jewelry, and other items in their name.
  • Reach out to creditors and pay the decedent’s outstanding debts, including their final hospital and funeral expenses.
  • Distribute remaining assets to the beneficiaries according to the decedent’s wishes and state law.

Don’t spend time searching online for a “probate attorney near me.” The Law Office of Gary M. Landau, P.A. has decades of experience probating estates of all sizes throughout the state of Florida. We can assist you with any questions you might have regarding probate administration.

#1 Formal Administration

When the decedent’s probatable assets exceed $75,000 (including their share of non-homestead real estate in Florida or elsewhere), and the probate is being done within 2 years of the person’s death, a formal administration is required.

Probatable assets are not the same as general assets. Many assets don’t need to go through probate and so don’t count in this determination. Some exempt assets include real estate jointly owned with another person, shared bank accounts, assets in a living trust controlled by the decedent, and life insurance with a named beneficiary.

Formal administrations are the most comprehensive Florida probates and generally take months to complete, even longer if the estate is complex or is large enough to require the payment of federal estate taxes. Hiring an experienced Florida probate attorney is the best way to ensure your formal administration is discharged smoothly.

#2 Summary Administration

A summary administration is a shortened form of probate. It can be used if the decedent died more than two years prior to the filing of the probate or if the total value of their property (excluding non-probatable assets) is less than $75,000.

A summary administration typically takes less time and involves fewer costs than a formal administration.

In a summary administration, legal documents known as a “petition” are filed with the court, outlining all of the estate assets along with the plan for distributing the assets to each beneficiary according to the wishes of the decedent in their Will.

If the probate court finds the petition to be in proper order, it will approve the plan and the assets can quickly be distributed.

#3 Ancillary Administration

When the person who died was a resident of another state but owned property in Florida, an ancillary administration is sufficient. That’s because the primary probate process occurs in the state where the decedent lived. The ancillary administration is done only for the assets located in Florida, such as a second home.

An ancillary administration is generally completed without the requirement for beneficiaries or the personal representative to travel to Florida.

After the probate is filed in the state where the owner resided, a Florida probate lawyer opens the ancillary probate. This is done by filing an authenticated copy of the Will, the death certificate, the primary probate filing, and other documents.

Not all second homes or other Florida property require an ancillary probate. For example, if property is owned in title with another person as a “joint tenant with right of survivorship” or if it is placed inside a revocable living trust, it would not need to go through probate.

#4 Disposition Without Administration

Disposition Without Administration, also known as a Disposition of Personal Property Without Administration or even as a Small Estate Proceeding, is a process for distributing the very small amount of assets of a deceased person without any probate process. There are limited circumstances where this type of administration can be used, and therefore it is rarely filed.

Say a person died with a small sum of money in their possession. But they also have medical bills from the last 60 days of their life along with funeral expenses, which together exceed that amount of money. The heirs want to use the deceased’s estate to pay these bills, but going through a summary administration would involve time and costs that don’t make sense in this situation, because there would be nothing left over for them to inherit.

When determining how much money the deceased person had, items like personal furniture or automobiles are not counted. Nearly all other assets are valued, however, which is why in most cases another type of probate, especially a summary administration or formal administration, is required.

Do You Need to Hire an Attorney for Disposition Without Administration?

In most cases, an attorney is not necessary for this very limited type of probate. A family member can generally file this by obtaining and submitting a form to the court, along with a court fee of several hundred dollars, plus:

  • A certified copy of the death certificate
  • The Last Will and Testament (if one exists)
  • A copy of the hospital and funeral home bills (even if the latter was initially paid by someone else)
  • Copies of the person’s assets, including bank statements, stock accounts, insurance checks, real estate, and others.

Once the probate judge has reviewed these items, he or she will issue an Order for Payment of Funds. This order is given to the person’s bank or other asset holders to initiate the transfer of assets to pay their end-of-life bills.

The Three Stages to Probating an Estate in Florida

Most estates in Florida are handled as formal or summary administrations. Each of these involve the following 3 stages:

Opening the Estate for Probate in Florida. The personal representative or other heir hires a probate attorney. Working together, the team gathers all necessary information and documents, including a certified death certificate and the person’s Last Will and Testament (if they have one) and files a Petition for Administration in the Florida Probate Court.

The court assigns a case number and the estate is considered “opened.” The judge reviews the files and issues Letters of Administration naming the personal representative as the estate’s official representative.

Administering the Probate Estate. This is the most time-consuming step. The personal representative must locate all the assets in order to perform an inventory for the courts. Creditors must also be notified, including by publishing a notice of death, and they have 90 days to file a claim (which the estate can challenge if they do not think the claim is justified).

During this process, the personal representative is responsible for paying the person’s ongoing expenses, such as a home mortgage or maintenance fees, car payments, and the like. This is generally done from a special estate bank account opened with the letters of administration.

If the estate is large enough to trigger federal taxes, they must be calculated and paid.

Once all creditors have been satisfied and all heirs identified, the estate is ready to be closed.

Closing the Probate Estate. The probate attorney files a petition with the court to close the estate, and the judge signs a Discharge Order. This releases the personal representative of their duties. All of the remaining assets can now be distributed to the individual’s heirs according to the terms of the Will and/or Florida law.

Contact the Law Office of Gary M. Landau, P.A. to Discuss Your Florida Probate

A knowledgeable probate lawyer can ensure that the right type of probate administration is done and that all steps of the probate process are performed efficiently and properly.

The Law Office of Gary M. Landau, P.A., has over 25 years of experience with probates and other legal services. Clients in Broward and South Palm Beach Counties can come to our offices in Coral Springs, but the Law Office handles probates everywhere in the state of Florida and has filed probates in nearly every county in the state.

To learn more about the type of probate that is right for your loved one’s estate, and to understand the legal and court fees involved, call our office at (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We can work with you in person, over the phone, or on Zoom.

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.

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