When someone dies, there is a court-supervised process that must take place before their property can be distributed. The process is called probate.
Sometimes the family can go through a simplified process called summary probate administration when someone has been dead at least two years, or their probate estate is valued at less than $75,000. In other cases, family members must initiate formal probate administration in Florida.
Formal probate administration is a little more complicated, and mistakes can be costly, so it is important to work with an experienced probate attorney.
What Is Probate Estate?
The property a deceased person (decedent) leaves is called their estate. In most cases, only some of a deceased person’s property must go through probate.
Anything the decedent owned jointly with someone else is not part of their probate estate—it passes immediately to the other owner. Property with named beneficiaries, like life insurance policies and retirement accounts, are not part of the probate estate. The home the decedent lived in passes directly to their surviving spouse or children in most cases and is not part of their probate estate. Anything held in a trust is not subject to probate.
Florida Statute § 732.402 allows the surviving spouse and children to immediately claim certain property, and that property is not part of the probate estate. Exempt property includes furniture and appliances up to $20,000 in value, two motor vehicles weighing less than 15,000 pounds, and certain other property. A Florida attorney can help a family determine what property is exempt from formal probate.
How Do You Start Formal Probate Administration?
When the exempt property has been removed from the calculation and the remaining estate is worth more than $75,000, an interested party must petition the probate court to open formal administration. In most cases, the interested party is a family member or beneficiary of the decedent. A Florida attorney can advise a family about formal administration and prepare the petition to get it started.
When the decedent has a will, it names an executor to serve as the estate’s personal representative. When the decedent died without a will, the court will appoint someone to be the personal representative. The personal representative is usually a spouse or an adult child of the decedent, but it could be anyone over 18 who has not been convicted of a felony or a crime involving the exploitation of a vulnerable person.
The court issues the personal representative a letter of testamentary if the decedent had a will, or a letter of administration if the decedent did not have a will. In either case, the letter is legal authorization from the court for the personal representative to access and manage all the decedent’s probated property and debts.
What Happens During Formal Administration?
There are multiple steps to formal probate administration in Florida. The personal representative must identify, locate, and value all the decedent’s probate property. That includes any debts they are owed and legal claims they might have. The personal representative must collect any income the estate generates, manage the decedent’s investments, and prepare property for sale, if necessary.
The personal representative must settle the decedent’s debts, which includes publishing the news of the decedent’s death with instructions for filing claims against the estate, and creditors have 90 days from the publication date to submit claims. The personal representative can often negotiate the debt with the decedent’s creditors, but they must obtain releases from all creditors before they can distribute the estate. A Florida attorney can assist the personal representative with publication and obtaining releases.
When all the estate’s debts are satisfied, the personal representative can distribute the remaining property according to Florida law, and the will (if one exists) determines who gets what property. When property distribution is complete, the personal representative can petition the court to close the estate. The entire process can require from several months to several years, depending on multiple factors.
Ask Our Florida Attorneys About Formal Probate Administration Today
The death of a loved one can be overwhelming and it might be hard to focus on practical matters. Working with a compassionate attorney can make managing their estate less stressful.
The team at The Florida Probate & Family Law Firm is ready to answer all your questions about formal probate administration in Florida, so schedule a free case evaluation as soon as possible.