When someone dies in Florida, their estate goes through probate unless other arrangements have been made. Probate is a court proceeding where the deceased person’s assets are identified and inventoried, their debts are paid, and the remaining assets are distributed to their beneficiaries.
The assets that go through probate are the assets that a deceased person owned in his or her name, or assets that a deceased person co-owned where there isn’t an automatic succession of ownership.
Some assets don’t have to go through probate, such as:
- Joint tenancy property owned by more than one person. An example of this would be a house owned by a couple or a bank account shared with another person.
- Assets where the deceased person named a beneficiary, like a retirement account, POD bank account, or life insurance proceeds.
- Assets in a living trust.
If you want to avoid probate, an experienced estate planning attorney can provide guidance on techniques that allow you to do this.
However, if a family member failed to craft an estate plan to avoid probate before passing away, Florida provides three different options for settling your estate. Let’s start with the simplest and least expensive option first.
Disposition without Administration – No Probate
Disposition without administration allows the person who paid for the deceased person’s final expenses – funeral or final medical costs – to be reimbursed from the estate.
Unfortunately, it is only available to family members when someone dies and they don’t have very much to leave behind. It can be used when the deceased person for estates that don’t include any real estate and the only remaining assets are exempt from creditors or don’t exceed the final expenses amount.
In order to receive reimbursement, the person who paid for the expenses will file a Disposition of Personal Property Without Administration form. On this form, you will have to disclose how much money you’ve spent and document those expenses with bills and receipts during the last 60 days of the deceased person’s life. You will also have to state which assets you would like payment from and present a certified copy of the death certificate.
Summary administration is a probate shortcut and can be used if the death occurred more than two years ago or the value of the probate estate isn’t more than $75,000. This valuation only includes probate assets — nonprobate assets are excluded.
In order to start summary administration, the will executor or anyone who inherits property will need to file a Petition for Summary Administration. The surviving spouse and any beneficiary must also sign and verify the petition. In the petition, you will have to say that the estate qualifies for summary administration, list all the assets and their values, and name who will inherit each asset.
If the court determines that the estate qualifies for summary administration, it will issue an order and release the property to its inheritors.
Formal Administration – Probate
Formal probate may be necessary if the estate doesn’t qualify for simpler administration or other arrangements weren’t made. Probate begins when the executor of the will asks to be appointed as a personal representative. The court will then issue Letters of Administration, which grants the personal representative the authority to settle the estate.
If there’s a will, the court will have to prove that it’s valid. If the will is self-proving, the document itself is sufficient.
The personal representative will then go through the probate proceedings and the deceased’s estate, identifying, inventorying, paying debts, and finally distributing the remaining assets. The personal representative must document everything and, once he or she is finished, they can ask for the estate to be closed.
Probate proceedings can be quite complicated and take months – or even up to a year – depending on the estate and what exactly is involved.
Using a Probate Attorney
Depending on the value of the estate, probate attorney fees can vary significantly. Florida outlines lawyer fees in its statutes, but keep in mind that these fees are just a guideline (Florida attorneys aren’t required to follow them) and are only for ordinary services – anything above that will require a larger fee.
Here are a few of those statutory fees:
- Estate valued up to $40,000: $1,500 in fees
- Estate valued $40,000-$70,000: $2,250 in fees
- Estate valued $70,000-$100,000: $3,000 in fees
- Estate valued $100,000-$1 million: $3,000 in fees plus 3% of the value over $100,000
As you can see, probate can become quite expensive in addition to causing stress in a trying time and delaying family members’ inheritance. That is why it is so important to plan for the future. To see what options are available, contact an experienced Florida estate planning attorney today who can help you tailor an estate plan to your unique needs.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.