Probate Administration Process in Florida

 

​Probate administration is a process supervised by the court for admitting a decedent's will, identifying and gathering the assets of a decedent, paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. Probate administration only applies to probate assets. Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Some examples of non-probate assets are assets which pass directly to named beneficiaries by operation of law, including, life insurance proceeds, bank accounts with payable-on-death or transfer-on-death (TOD) designations, some retirement accounts, and some forms of real estate ownership.

 

Types of Florida probate administration:

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"Formal Administration" is the comprehensive administration process wherein a personal representative is appointed by the judge to be in charge of the full administration of the decedent’s probate estate, including the duty of serving formal notice to creditors, resolving all timely filed & valid creditor claims, preparation of a full estate inventory, and opening of a restricted depository bank account to hold all liquid probate assets until the court approves distribution. In addition to appointing a personal representative(s), the judge will also issue “Letters of Administration,” also referred to simply as “letters.” These “letters” are important evidence of the personal representative’s authority to administer the decedent’s probate estate.

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“Summary Administration” is an abbreviated type of administration proceeding generally available only if the value of the estate subject to probate in Florida is not more than $75,000 (without including the value of homestead real property) and/or the decedent has been dead for more than two years and there has been no prior administration. Those who receive the estate assets in a summary administration generally remain liable for claims for two years after the date of death.

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“Disposition Without Administration” is a non-court-supervised administration proceeding available only if probate estate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of (1) the amount of preferred funeral expenses; and (2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness, if any.

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"Ancillary Administration" is available to administer the estates of nonresidents who die leaving assets/real property in the state of Florida, credits due from residents in this state, or liens on property in this state. Ancillary personal representatives shall have the same rights, powers, and authority as other personal representatives in Florida to manage and settle estates; to sell, lease, or mortgage local property; and to raise funds for the payment of debts, claims, and devises in the domiciliary jurisdiction.

 

Probate proceedings generally take place in the county where the deceased person was living at the time of death. In the case of Formal Administration, the appointed personal representative may be an individual, bank or trust company. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix.” If the decedent had a valid will, the judge will appoint the person or institution named by the decedent in his or her will to serve as personal representative, as long as the named person or bank or trust company is legally qualified to serve. If the decedent did not have a valid will, the surviving spouse has the first right to be appointed by the judge to serve as personal representative. If the decedent was not married at his or her death, or if the decedent’s surviving spouse declines to serve, the person or institution selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative.

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Duties of a Florida Personal Representative:

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The duties of the personal representative must be discharged in strict accordance with the law, and the personal representative must be able to fully account for all of the decedent's property and the management of it during the period of administration. The basic duties of the personal representative will be to collect and preserve the assets of the estate; to prepare and file a full estate inventory; to pay all valid debts of the decedent and expenses of administration including taxes; and finally to distribute the remainder of the estate to those persons entitled to it.

 

The distribution of the decedent’s probate estate is subject to certain exceptions for homestead property and exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. These exceptions protect certain probate assets from the claims of creditors and may provide for the financial maintenance of family during the lengthy probate process.

 

Creditor Claims & Expenses of Administering the Estate:
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The personal representative is obligated to make payment of expenses of administration and creditors' claims against the estate in accordance with the priorities set forth in the statute. As a general rule, the personal representative should not pay any debts or claims until his or her attorney approves payment. After payment of all costs of administration and timely filed & valid creditor claims, probate assets may be distributed to the decedent's beneficiaries in accordance with the decedent's valid Last Will and/or to the decedent's "heirs" in accordance with the Florida statute governing distribution of the probate assets of a decedent who died intestate (without a valid Last Will).

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To compensate the personal representative for the many services rendered in carrying out the responsibilities of administering an estate, the law provides, in addition to reimbursement of all reasonable estate administration expenses, that the personal representative is entitled to compensation. The compensation is payable from the estate assets. In Florida, these fees are determined by statute unless the decedent during his or her lifetime or the heirs or beneficiaries contracted with the personal representative for a different fee arrangement.

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Closing the Estate & Discharge of Personal Representative:

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When all debts and taxes have been paid, and administration of the estate has been completed except for final distribution, the personal representative must file a final accounting (unless waived) and a petition for discharge. The entire process takes approx. six months to one year.

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The probate process can seem like a complicated and stressful, but it doesn't have to be. An experienced Florida probate attorney should be hired to competently assist in the administration of the decedent’s probate estate. The attorney for the personal representative will advise the personal representative on their rights and duties under the law, prepare all court filings, notices, proposed orders, personal representative deed, inventory reports, and accountings, etc. The probate lawyer also represents the personal representative in probate estate proceedings.

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Click here to review some of the Florida Statutes that regulate the probate process.

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The above summary is provided for general informational purposes only and should not be considered legal advice. Some of the sources of the above information include: the Florida Bar Consumer Pamphlet on Probate and the Florida Statutes. Because the law is continually changing, some of the information may be out of date. It is always best to formally consult an attorney about your legal rights and responsibilities in your particular case.