Probate in Florida

Written by Fletcher H. Rush | frush@farr.com

Attorney Fletcher H. Rush practices in the areas of wills, estate planning, trust administration and tax planning.

In medieval England, the process of officially proving a last will and testament was called “probate,” a term derived from the Latin verb for examining or proving something. Courts in Florida still use this medieval term to describe the judicial administration of the estate of a deceased person (decedent).  A will that has been adequately proved may be “admitted” to probate in Florida, thus starting the process of identifying and collecting the decedent’s assets, determining and settling the liabilities of the decedent, and (most importantly) distributing the assets of the estate to the beneficiaries.  Probate is required where assets were owned only in the decedent’s individual name with no beneficiary designation or were owned by the decedent and another person but lacked a right of survivorship or automatic succession at death.

In Florida, there are two types of probate administration: summary and formal.  There is also an option to dispose of tangible personal property without administration which is beyond the scope of this article.  Both summary and formal administration require proving the terms of any last will and testament that will serve as the basis for distributing the decedent’s assets.  To begin either process, someone (the “petitioner”) must file a petition for administration which establishes the pertinent facts regarding the decedent’s estate.  In general this petition is filed in the Circuit Court for the county in which the decedent resided.

Summary administration may be permitted where the decedent’s assets do not exceed $75,000 or the decedent passed away more than two years ago.  As the name implies, summary administration is often faster and simpler than formal administration, but it is not available or appropriate in many cases.  No personal representative (also known as executor or executrix) is appointed to administer the decedent’s estate.  Instead, a summary administration proceeding concludes with the court entering an order which establishes beneficiaries or owners of the decedent’s assets.  This order of summary administration may then be used to transfer bank accounts, investments, real property, and other assets.

The petition for administration of a formal probate proceeding includes a request that someone, normally the petitioner, be appointed as the personal representative of the estate.  The Florida statutes establish an order of priority for deciding who should be appointed personal representative.  As you might expect, preference is given to the person named in the decedent’s last will and testament, the surviving spouse of the decedent, or to the person chosen by the beneficiaries of the estate.  If qualified, the person with the highest priority under the statute is normally appointed as personal representative, and the court issues letters of administration granting the personal representative authority to administer the estate.  The letters of administration serve as a tangible document that the personal representative may use to demonstrate his or her authority to act on behalf of the estate.

The personal representative has many duties to the court, creditors, beneficiaries, and other interested parties.  A full discussion of these duties is beyond the scope of this article, but the personal representative is generally responsible for collecting and protecting assets, giving notice to beneficiaries and creditors, preparing an inventory of the estate assets, settling the debts and affairs of the decedent, filing any required tax returns, accounting for the assets and expenses of the estate, and distributing the estate assets to the intended beneficiaries.  The time period for completing formal probate administration where a federal estate tax return is not required is twelve months after the court grants letters of administration.  This time period may be extended in appropriate circumstances.

Probate can be a complex and often confusing process. The personal representative is a fiduciary who has the duty of care of a trustee in dealing with the assets of the estate.  Persons serving as personal representative frequently have little to no experience as a fiduciary so it is no surprise that Florida courts require that an attorney represent a personal representative.  Successfully navigating the probate process is no small feat and is often the result of careful and skilled legal representation.  Consulting an experienced probate attorney is a good first step before taking any action on behalf of an estate.


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