When Does It Pay to Wait to Probate

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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.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067

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