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NOTE: All references to sections of the Florida Probate Code and the Florida Probate Rules are to the 2009 statutes and rules, and all statutes and rules are subject to amendment from time to time. Florida Probate Code and the Florida Probate Rules are published on an annual basis at the end of each year.

TYPES OF PROBATE ADMINISTRATION IN FLORIDA

A legal proceeding, commonly known as "probate", is required to administer and distribute the assets of a deceased person's (usually referred to as “decedent”) estate. The nature of the proceeding will often depend on the date of death of the decedent and the value of the assets in the probate estate. As a general rule, most claims can only be enforced within two (2) years of a decedent’s death.

In each probate proceeding, the court proceedings are normally handled in the probate court of the county of the decedent's domicile at the time of death or, in some cases, in the county in which the decedent owned real property.

When probate consists of an interest in real property, a probate proceeding is often required so that title to the real property can be left to the heirs or beneficiaries entitled to receive said real property. Without such a proceeding, most title companies will not insure the title in the names of the heirs or beneficiaries.

The various types of probate administration in Florida are set forth below.

Testate Formal Administration
(Person dies leaving a will - testate)

When a person dies having an executed will, a court proceeding is instituted in the county in Florida of the decedent's death, if the decedent is a resident of the State of Florida and an appropriate person (usually designated in the will) is appointed as personal representative by the Court to administer the estate proceeding. The timing and complexity of the case will depend on whether the two (2) year period has passed since the date of death. If a decedent has been deceased for more than two (2) years, a summary administration can often be used instead of a formal administration.

The personal representative is responsible for administering the pursuant to applicable Florida Statutes. See, Section 733.608, Florida Statutes

Testate formal administration typically takes 6-12 months to complete (unless a federal estate tax return is required). Whether an estate tax return is required will depend on the estate law (federal and state) in effect at the date of death of the decedent. An estate tax return is currently required to be filed within nine months of a decedent’s death, unless an extension is obtained.

Intestate Formal Administration
(Person dies without a will - intestate)

When a person dies without a will, a petition for administration of the estate is normally filed by an interested person and the court will appoint a qualified person to serve as the personal representative to administer the estate proceeding. Preferences in the appointment of the personal representative are governed by Section 733.301(1)(b), Florida Statutes The timing and complexity of the case will depend on whether the two (2) year period has passed since the date of death. If a decedent has been deceased for more than two (2) years, a summary administration can often be used instead of a formal administration.

The intestate heirs of a decedent are set forth in Sections 732.101 through 732.111, Florida Statutes.

The personal representative is responsible for administering the pursuant to applicable Florida Statutes. See, Section 733.608, Florida Statutes.

Intestate formal administration typically takes 6-12 months to complete (unless a federal estate tax return is required).

Summary Administration
Where Decedent Died More than Two Years Ago

If a person was a Florida resident at the time of his or her death, or was a non-resident who owned Florida real estate, and he or she has been deceased for more than 2 years, then a summary administration can be handled under Chapter 735, Florida Statues as amended from time to time, provided that the Last Will and Testament does not direct administration as required by Chapter 733, Florida Statutes. The procedure for a Summary Administration is much quicker and less expensive than a full probate administration.

Summary administration typically takes 2 to 3 months to complete from the date of the filing of the petition for summary administration.

Summary Administration
Where Decedent Died Less than Two Years Ago

If a person was a Florida resident at the time of his or her death, or was a non-resident who owned Florida real estate, and he or she has been deceased for less than 2 years but whose value of the entire estate subject to administration in Florida, less the value of property exempt from the claims of creditors, does not exceed $75,000, then a summary administration can be handled under Chapter 735, Florida Statutes, provided that the Last Will and Testament does not direct administration as required by Chapter 733, Florida Statutes. The procedure for a Summary Administration is much quicker and less expensive than a full probate administration.

The value of homestead is not considered when valuing the property for a summary administration. The determination of whether property is homestead property, however, must normally be made by the Courts.

Summary administration typically takes 2 to 3 months to complete unless a petitioner desires to provide notice to creditors. In such a case, the summary administration can take a longer period.

Ancillary Administration

If a person was not a Florida resident at the time of his or her death, but who dies leaving real property in Florida, a personal representative specifically designated in the decedent’s will to administer the Florida property shall be entitled to have Ancillary letters issued, if qualified to act in Florida. Otherwise, the foreign personal representative of the decedent’s estate shall be entitled to have letters issued, if qualified to act in Florida. See Section 734.102, Florida Statutes for the specific requirements for an ancillary administration.

The personal representative acts in the same capacity as a formal administration as set forth in Section 734.102(7), Florida Statutes. All proceedings for appointment and administration of an ancillary estate shall be as similar to those in original administrations as possible. Section 734.102(4), Florida Statutes.

Ancillary administrations can be summary or formal administrations.

Non-Probate Assets

Non probate assets pass outside of the decedent's probate estate and are generally not subject to court supervision although certain exceptions sometimes apply.

Property generally not included in the probate estate often include life insurance proceeds that designate beneficiaries other than the decedent's estate, retirement plans that have specifically named beneficiaries other than the decedent’s estate, jointly owned property which automatically passes to the surviving joint owner by right of survivorship, property held by a husband and wife as estates by the entireties and pay on death accounts. There are other assets that are non-probate assets that are not listed herein. Also, non-probate property can consist of an intervivos (or living) trust that the decedent had the power to revoke (either alone or in conjunction with another) at the time of his/her death. See, Section 689.075, Florida Statutes.

However, the trust assets may be used to satisfy the expenses of estate administration and the claims of creditors if the probate property is insufficient. See, Section 733.707(3), Florida Statutes.

All references to sections of the Florida Probate Code and the Florida Probate Rules are to the 2009 statutes and rules, and all statutes and rules are subject to amendment from time to time.

Charles L. Hoffman, Jr., Esq. | Shell, Fleming, Davis & Menge, P.A.
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