When Does It Pay to Wait to Probate

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By Gary M. Landau, Esq.

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When Does It Pay to Wait to Probate | Coral Springs, FL | Call (954) 979-6566

In Florida, as in many other states, you can begin probate for a deceased relative or friend as soon as the person passes away. Often, there are sound reasons for starting the probate as soon as several days or weeks. But sometimes, it is smarter to wait.

Starting early means the estate can begin the process of inventorying assets and putting up the person’s house for sale. And because probate can take months or longer, the sooner it is started, the quicker the heirs can get their inheritance.

Sometimes, though, moving quickly is not the best approach. In certain cases, waiting makes sense. That’s because Florida law distinguishes two types of probates that can be done for an estate.

Two Types of Probates

One type of probate in Florida is a formal administration, which is a process closely supervised by the courts. Formal administrations must be done when the estate’s assets are more than $75,000 and it has been less than two years since the person passed away. This process includes the official opening of the estate; the appointment of the personal representative, or PR, who is in charge of overseeing the estate; arranging to pay all creditors; distributing assets; and then closing the estate with the approval of a judge. For very large estates, over $11.18 million for a single person in 2019, federal taxes must also be paid.

Because of all the steps involved, a formal administration is more costly than the other type of probate, a summary administration. With a summary administration, several probate steps are skipped or compressed. For example, no PR needs to be appointed. To qualify for a summary administration, an estate’s assets must be worth less than $75,000. Or, and here’s where the timing comes in, the person must be deceased for more than two years.

Since a summary administration is less costly, in terms of both court costs and attorney’s fees, and moves more quickly, there are times when it pays to delay filing probate in Florida so that a summary administration can be filed.

When to Wait for a Summary Administration

Here are several situations where delaying the filing of the probate makes sense:

#1 The estate owes money to creditors.

When a formal estate is opened, the personal representative is charged with publishing notice of the death in the newspaper, so companies and individuals to which the deceased person has debt can learn of the person’s death. Creditors then have 90 days to submit a claim to the estate.

If the estate is a summary administration, though, the creditors do not have to be notified. This can save the estate a substantial amount if the debts are high.

Keep in mind, however, that a creditor who is owed money by an estate can open probate themselves. This doesn’t happen often, but it is a possibility, especially if the dollar amount owed is high.

#2 The only asset is the home, and you or your siblings plan to live there.

When the heirs want to sell the home of the person who has passed away, it rarely makes sense to delay probate. That’s because the heirs will need to keep paying the mortgage, maintenance fees, taxes, insurances, repairs, and all the home’s other expenses while they still own it. Selling the home quickly, and stopping all those expenses, can save a lot of money.

However, if you or another heir plans to live in the home, you will be incurring those costs anyway. I recently had a client who had moved into his father’s house to take care of the man and decided he liked living there enough that he planned to stay. For him, the home’s expenses weren’t an added burden, but simply the typical homeowner costs he would be paying anyway.

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

Florida law is particular about who can be named a personal representative. For example,
a non-relative who does not live in Florida is not allowed to serve as a PR, even if the deceased person’s will names them to the post.

If the person is a resident of a state other than Florida but is a relative, the courts do allow the person to serve as PR. However, courts often require that the PR post what is known as a bond, which is money held by the court until the probate is completed.

These bonds can be pricey, which is why if the will has named an out-of-state relative, waiting until you can do a summary administration that does not require a PR may be a smart move.

#4 It is nearly two years since the person died.

Clients often come to me more than a year after a relative passed away ready to probate the person’s estate. Because a formal administration can take months, in this situation it often pays to wait until the two-year mark.

I once had a client who, despite my advice to wait, did not want to do so. We filed a formal administration six months before we would have been able to file a summary. The court delayed the probate process so long that even though we started earlier, the probate finished later than it would have been having we waited, and more costs were incurred.

Probate Attorney Coral Springs

Have the Law Office of Gary M. Landau by your side. The Law Office of Gary Landau is located in Coral Springs, Florida, and is rated 10 out of 10 by the legal website AVVO. For more information or free phone consultation, call 954-979-6566 or email us. Attorney Gary Landau personally returns all calls to him.

Law Office of Gary M. Landau P.A.
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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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