What is Probate?
by Kevin R. Albaum
Probate is the legal process through which a deceased person’s debts are paid and assets are distributed to their heirs or designated beneficiaries via a court process. This article will outline the options that are available to the deceased person’s heirs or beneficiaries. If a person has a validly executed Last Will and Testament (more commonly called a “Will”), they are able to name the individuals, trusts, and/or charities they choose to receive their assets when they die. This is known as dying “Testate”. If a person does not have a valid Will in place when they die, then Florida law dictates who their heirs are that will receive the deceased person’s assets. There are four (4) different types of probate administration available under Florida law when a person dies residing in Florida (or owning real property in Florida). These different probate administrations are as follows: Formal Administration, Summary Administration, Disposition without Administration and Ancillary Administration.
Formal Administration: This method is the most common type of probate administration and often the preferred method by lawyers and courts. The process starts by the filing of a petition for administration. The court will admit the Will to probate (if there is one) and will also determine the person entitled or preferred to administer the estate. This person is known as a “Personal Representative”. The Personal Representative is issued “Letters of Administration” which is a document that gives them authority to act on behalf of the deceased person, so they can handle their final affairs such as paying creditors, filing tax returns, and transferring assets. An inventory is prepared by the Personal Representative, debts are paid (if properly presented to the court), and remaining assets are eventually distributed to heirs or beneficiaries. The formal probate is a lengthy process which will typically take anywhere from 6 months to several years. A probate attorney should be consulted to conduct a formal administration to ensure proper legal procedures are followed.
Summary Administration: This is an abbreviated court process to transfer a deceased person’s assets to the proper heirs or beneficiaries. It is available when the value of an estate is under $75,000 (not counting the homestead property and other exempt assets in the valuation). Summary administration also requires that there are no creditors owed any funds by the deceased person and/or that the individual has been dead for at least two (2) years. A petition for summary administration (and a few other pleadings) are prepared and filed with the Court. If the Court believes that the estate qualifies for summary administration, then an order is entered directing the distribution of the assets to the proper heirs or beneficiaries. The order is then presented by the heir or beneficiary to those individuals and/or companies in possession of the assets to transfer and/or re-tile them to the new owner. However, no personal presentative is appointed to administer a summary administration which can be a logistical problem sometimes if a company holding funds of the deceased person is requiring to see a document called “Letters of Administration” (which are only issued in a formal or ancillary administration).
Disposition without Administration: This type of probate isn’t technically a form of probate because there is no administration that even occurs. This method is also sometimes known as a small estate disposition and is rarely used. Most of the time no attorney is involved in the process and an individual goes to the county courthouse with all required documentation to complete. This method can be utilized if the only items a person dies owning are certain assets exempt from the claims of creditors and non-exempt personal property when the value of which does not exceed the sum of the funeral expenses and necessary medical and hospital expenses of the last 60 days of the last illness before death. If that is the scenario, an interested party may be able to submit a disposition form along with a death certificate, paid funeral bill, paid receipts of all medical and hospital expenses of the last 60 days prior to death, and the original will (if one exists) to accomplish a disposition without administration.
Ancillary Administration: This form of probate administration is available if the deceased person owned property in Florida but was not a Florida resident. The most common time this is needed if an individual owns real property in Florida but resides in another state or country. An ancillary administration often will run parallel and concurrently to a primary probate administration taking place in the deceased person’s state of residence. The procedure follows the formal administration track and it is important to work with an experienced probate lawyer.
Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to firstname.lastname@example.org.
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