Probate Administration

Probate Administration

Florida probate is a legal proceeding for dealing with the Florida assets of a deceased person. According to the Florida bar:

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.

Although every case is different, the Florida probate process will usually include:

  • Establishing the validity of the Last Will and Testament (if any);
  • Obtaining Florida letters of administration appointing someone to serve as personal representative of the estate;
  • Gathering and listing the decedent’s assets;
  • Paying all of the decedent’s outstanding debts; and
  • Distributing the remainder of the decedent’s assets to his or her beneficiaries or heirs at law.

Is Florida Probate Necessary?

Whether or not a Florida probate proceeding is necessary depends on what assets the decedent owned and how they are titled.  Non-probate assets will pass to others automatically, without the need for probate. There are four basic categories of non-probate assets:

  1. Trust Property – Assets that are titled in the name of a valid living trust are not assets of the estate and do not need to go through probate.
  2. Beneficiary Designations – Assets with payable-on-death or transfer-on-death designations do not go through probate.  Examples include life insurance and retirement or other financial accounts with valid beneficiary designations.
  3. Property Owned Jointly with Rights of Survivorship or Tenancy by the Entirety – Property that is owned jointly with rights of survivorship or by tenancy by the entirety passes automatically to the surviving owner at the death of one owner.
  4. Life Estate Deeds – Real estate that passes to a remainder beneficiary under a life estate deed (including a Florida Lady Bird deed) is not a probate asset.

If all of the decedent’s assets are non-probate assets, probate will not be required.

Probate assets include real estate owned only by the decedent, bank accounts in the name of the decedent, and life insurance policies that fail to name a beneficiary or are payable to the estate.  If the decedent owned any of these assets, Florida probate will probably be required.

Estate Planning Question: I have a Last Will and Testament.  Doesn’t this mean that my estate won’t need to go through probate? 

No.  A will does not avoid probate.  In fact, the term probate technically refers to “proving” a will.  There are ways to structure an estate plan to avoid probate (such as using revocable living trusts), but just having a will won’t do the job.  Probate doesn’t depend on whether or not you had a will, but on what assets you own and how they are titled.

Types of Florida Probate Proceedings

There are several different types of Florida probate proceedings, each of which depends on the circumstances involved.  Florida probate alternatives include:

  • Formal Administration – Formal administration is the most common type of Florida probate proceeding.  A formal administration will always clear title to a decedent’s assets, no matter the value. Because of this, formal administration is the best form of probate for most estates.
  • Summary Administration – Summary administration is a shortened form of probate. It only applies if the decedent has been dead for more than two years or if the total value of the decedent’s property (exclusive of exempt assets) does not exceed $75,000.00.
  • Ancillary Administration – Ancillary administration is administration of the estate of a decedent that did not live in Florida. In many cases, an ancillary administration does not differ substantially from a formal administration.  But there are situations in which ancillary administration can save time and costs.
  • Disposition Without Administration – Disposition without administration is a court procedure for disposing of a deceased person’s assets without any form of administration. Because it is available only in very limited circumstances, it is rarely used.