Florida Estate Planning Lawyer Blog

There are to main types of probate administration in Florida: summary administration and formal administration. Summary administration can only be used when the total value of decedent's assets subject to probate are $75,000 or less, or when the decedent has been dead for more than two years. Formal administration is used for all other estates or whenever a personal representative is required for other purposes.

SUMMARY ADMINISTRATION
Steps

1. Preparation of the documents.
2. Publication of the notice to creditors.
3. Determination of homestead (if applicable).
4. Distribution of the funds to creditors and beneficiaries per court order.

Costs and Time Frame: The current court costs are around $400 and publication costs range from $30 to $300, depending on the county and news paper. However, most costs are around $200. The approximate time frame is three to five months - unless extraordinary circumstances occur, like a will contest. Decedent's estate cannot be closed while litigation is pending.
 
Pros

• Shorter proceeding than formal administration: three to five months compared to four to twelve.
• Less work and less expensive than formal administration.
• Less complicated than formal administration: Summary administration involves less hoops and hurdles than formal administration.

Cons

• A personal representative is not officially appointed: In formal administration, the appointed personal representative is given authority to request all the information he or she needs regarding the decedent's assets. Without this authority, requesting information regarding decedent's assets might be a little more challenging.
• No letters of administration are provided: if you need letters of administration for any reason, or if the estate will be subject to litigation, you should open a formal administration
• All assets need to be accounted for before filing.

FORMAL ADMINISTRATION
Steps

1. Preparation of the documents.
2. Appointment of personal representative.
3. Publication of notice to creditors.
4. Filing of the inventory of decedent's estate.
5. Determination of homestead (if applicable).
6. Distribution of the assets to creditors and beneficiaries.
7. Closing of the estate.

Costs and Time Frame: The current costs are $400 plus publication costs that can range from $30 to $300. Depending on the county and newspaper. However, most costs are around $200. The approximate time frame is four to twelve months unless extraordinary circumstances occur: i.e. litigation. The estate cannot be closed while litigation is pending.

Pros

• A personal representative is appointed: with authority to secure information about decedent's assets or debts.
• Letters of administration are provided: banks and financial institutions are more comfortable with letters of administrations than with orders of summary administration.
• Best choice when there are many known creditors.
• Best choice when decedent's estate will be subject to litigation.

Cons

• Longer proceeding than summary administration: four to twelve months compared to three to five months.
• More expensive than summary administration.
• More work required than in summary administration.

WHICH SHOULD I CHOOSE?
The answer is it depends. There are important variables to consider when making the choice. Every probate case is different, even if the differences are small. For example, some cases require letters of administration, making summary administration not a viable option. Be sure you are making an informed choice. To make an informed choice, contact a probate lawyer. For an attorney in Florida, call the Apple Law Firm at (904) 685 - 1200 or click the "Contact Us" tab at the beginning of the page.

Below is a summary of the more common ways that property is transferred in the state of Florida when someone dies.

Somebody just died leaving you an interest in a piece of property. To reclaim your interest in the property you must prove that you own it by documenting the transfer from the estate of the decedent to you. The procedure involved varies depending on the interest held on the property by the decedent, and on many other factors.

Joint Tenancy with Rights of Survivorship
When two people own a property as joint tenants with rights of survivorship, each one of them owns an undivided interest in the property. When one owner dies, his or her title passes automatically to the surviving owner. However, the instrument creating the joint tenancy must explicitly provide for the right of survivorship. If decedent and you owned the property as joint tenants with right of survivorship, then the real property is automatically transferred to you. To reclaim your interest in the property, you just need to file with the clerk of court the decedent's death certificate.

Tenancy by the Entirety
This is a special form of joint ownership available only to married couples. A property held in this manner does not belong to one spouse individually; each spouse owns the property as a whole. Consequently, the property passes automatically to decedent's surviving spouse if it was owned as a tenancy by the entirety.

Tenancy in Common or Single Ownership
Probate is necessary if a person dies owning anything in his or her name individually. Probate is a court-supervised procedure in which the assets of the decedent are identified and gathered to pay decedent's debts and to be distributed among the decedent's heirs or beneficiaries. The following steps illustrate the distribution process of the property through probate:

1. Probate is opened.
2. Court appoints a personal representative (PR).
3. PR can use decedent's estate to pay for the costs involved in the probate procedure.
4. Court determines if the property is homestead (not subject to the claims of creditors) or non-homestead (subject to the claims of creditors)
5. PR notifies and pays decedent's creditors. If the property is non-homestead the property may be available to pay creditors' claims
6. PR distributes decedent's remainder assets to decedent's beneficiaries or heirs.

• If decedent died with a will: You will receive a deed naming you as an owner of the property devised to you under decedent's Will.
• If decedent died without a will: All decedent asset's will be distributed as stipulated in Florida Statutes section 732.102, 732.103, 732.104. You will receive a deed naming you as an owner of the property you are entitled to under Florida law.

7. Record the deed in the real property records of the county where the property is located.

Ancillary administration: It is the administration of a decedent estate in a state other than the one in which he or she lived. Ancillary administration might be needed when the decedent died living property in Florida and a domiciliary probate for his or her estate has been commenced in another state. To start this process, file a petition in the circuit court where the decedent's property is located. You must attach an authenticated copy of each of the following original documents:

• The foreign will.
• The petition for probate.
• The order admitting the will to probate appointing the personal representative.

Keep in mind that authenticated means that each copy must have a court seal from the court where the original document was filed stating that the copy is an authenticated copy of the original.

SEEK ASSISTANCE FROM AN ESTATE PLANNING ATTORNEY
An estate planning attorney can discuss with you the options you have to dispose of your property avoiding probate. Moreover, an estate planning attorney can assist you in the process of transferring the property from the decedent to the person entitled to it. For an estate planning attorney in Florida call the Apple Law Firm at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

When someone dies, his or her assets will not necessarily be distributed automatically to those entitled to them. If a person dies with a Will that devises his or her assets to you, then probate is necessary to carry out the instructions of the Will. Similarly, probate becomes necessary when a person dies owning anything in his or her name individually. This blog discusses the things that you need to receive your devised or inherited property that is in Florida and the process involved.

INGREDIENTS

• Decedent's original Will.
• The Will's self proving affidavit. If it is not available, then an oath from one of the following will be required: a witness to the Will, the nominated personal representative, or any disinterested person who believes the Will is genuine.
• Probate's filing fee and advertising costs. These fees vary based on the type of proceeding and county of the decedent's residence.

PROCEDURE
NOTE: In Florida most probate cases require hiring an attorney.

1. The custodian of the Will must deposit the original Will in the office of the clerk of Court within ten days of receiving information that the person is deceased. The custodian should deposit the Will with the Clerk of the Circuit Court in the county where the decedent resided. The custodian must also supply the decedent's date of death or decedent's social security number to the clerk upon deposit of the Will, if this information is available.
2. There are three basic types of proceedings to administer a decedent's estate and the one used depends on the size of decedent's estate:
   • a. Formal administration: used when there are considerable assets and it is necessary to appoint a personal representative to act on behalf of the estate.
   • b. Summary administration: used when the value of the entire estate does not exceed $75,000 or when the decedent has been dead for more than two years.
   • c. Disposition of personal property without administration: used to request release of the decedent's assets to the person who paid for final expenses such as funeral bills or medical bills that accrued in the last 60 days.
3. Once Probate is opened and the appropriate proceeding has been selected, the court appoints a personal representative for decedent's estate. The court gives deference to the person nominated as the personal representative in decedent's Will.
4. The personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent's Will and the Probate Code as expeditiously and efficiently as is consistent with the best interest of the estate.
5. The personal representative can use decedent's estate to pay for the costs involved in probate and must notify decedent's creditors so that they can file their claims against decedent's estate.
6. After paying decedent's creditors, the personal representative distributes the remainder of decedent's assets to the beneficiaries entitled to them.
7. After the administration of decedent's estate has been completed, the personal representative is discharged.

What if There is Not a Will?
If there is not Will, probate might still be necessary to distribute decedent's assets. Probate proceedings are initiated by filing a petition seeking to administer decedent's estate. A filing fee will also be required. Decedent's assets will be distributed according to Florida Statutes section 732.102, 732.103, and 732.104.

Contact a Florida Estate Planning Attorney
Going through the probate process can be a frustrating and daunting scenario. The best thing to do is to hire an estate planning attorney to assist you with this issue. Moreover, an estate planning attorney can help you plan your estate to assure an efficient distributions of your assets. For an estate planning attorney in Florida, contact the Apple Law firm by dialing the number (904) 685 - 1200, or by clicking the "Contact Us" tab at the top of this page.

In Florida when a Summary Administration is used to Probate an estate the Florida Probate must be converted to a Formal Administration to allow for a will contest.

There are time limits to object to a will so it is important to file documents timely. If the probate has not been opened in Florida it is possible to file a caveat. A caveat is a notice that is file in the probate court that allows you an opportunity to object to a will or the appointment of a personal representative. It is basically a notice to the court to give you an opportunity to respond before the court appoints a PR or admits the will for probate in Florida.

It is more difficult to remove a PR after they are appointed so if you feel that something is wrong, it is a good idea to file a caveat as soon as possible.

One a Florida Summary Administration Probate has been opened, it will need to be converted to a Formal Administration before you can object to the Last Will and Testament on grounds of undue influence.

While objections are not common in a summary administration there are circumstances when they may make financial sense. If you feel that a will was obtained by undue influence or created when someone lacked the capacity to create the will, you should contact a Jacksonville Estate Planning Lawyer or fill out the contact us form on this page.

There are certain times when a Probate case can use Formal Notice to reduce the time required and other times when it is required. Formal notice is defined by the Florida Probate Code to be notice which is sent by via certified mail to each interested person. Sometimes notice can be by publication when the whereabouts of a particular interested person or entity cannot be determined. This notice by publlication requires a much longer time period to the party to object than the 20 days when an interested party is serverd by formal notice. Some examples of when Formal Notice can or will be used include:

Petition for Administration
Petition to Determine Beneficiaries
Petition to Revoke The Probate of A Will
Petition to Probate Lost Will
Petition to Construe Will
Petition to Remove A Personal Representative
Petition to Surcharge Personal Representative
Petition to Cancel a Devise

There are 4 types of probate in Florida

1) Disposition without Administration.
This type of probate can only be used when the assets are less than the funeral bills and last medical expenses. This is available only if estate assets consist solely of property classified as exempt from the claims of the decedent's creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of:

1. up to $6,000 in funeral expenses; and


2. the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent's final illness.

Very few estates will qualify for this type of disposition. The steps involved in a Disposition without Administration are preparing documents and filing them along with a copy of the paid funeral bill.

The current court costs are $231 and the legal fees for this type of probate are the lowest of the three types of probates.

The approximate time frame is less than 30 days.

2) Summary Administration.

This type of probate can only be used when the total value of the assets subject to probate are $75,000 or less, or when the decedent has been dead for more than two years. The steps involved in a summary administration are preparing the documents, publishing notice to creditors, determining homestead (if applicable) and having the funds distributed to creditors and beneficiaries per the court order.

The current court costs are $345, and publication costs range from $30 to $300 depending on the county and newspaper (most are around $150).

The approximate time frame is three to five months unless extraordinary circumstances such as a will contest occur. The estate cannot be closed while litigation is pending.

3) Formal Administration.

This type of probate is for all other estates or whenever a personal representative is required for other purposes. The steps involved in a formal administration are preparing the documents, getting a personal representative appointed, publishing notice to creditors, filing an inventory of the estate, determining homestead (if applicable), distributing the assets to creditors and beneficiaries, and closing the estate.
If you need Letters of Administration for any reason, or if the estate will be subject to litigation, you should open a formal administration.

The current court costs are $400, and publication costs range from $30 to $300 depending on the county and newspaper (most are around $150).

The approximate time frame is four to twelve months unless extraordinary circumstances such as litigation occur. The estate cannot be closed while litigation is pending.

4) Ancillary Administration.

Ancillary administrations are for secondary probate administrations when the decedent's primary estate was in another state, but there was also real property in Florida. Ancillary administrations follow the same procedures as a summary administration or formal administration depending on the date of death, value of the real property, and whether a personal representative is necessary.

The approximate time frames are the same as for the summary or formal administrations above. The estate cannot be closed while litigation is pending.

In Florida Statute 733.301(1)(b)(2) defines how a minor child can participate in a probate proceeding. Minor children are not able to participate directly, but can do so through a court appointed guardian over their property. In a recent Florida case out of the 2nd District of Florida the appellate court found that it is an error not to give the minor children an opportunity to have a guardian appointed before appointing a personal representative.

The court found that although the mother, as natural parent, had no right to select the personal representative, she did have the right to file objections on behalf of her children. Significantly, the statute does not entitle a natural guardian to such a right. Rather, section 733.301(2) provides that "[a] guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative."

Although Florida Probate Rule 5.040(a)(2) provides that where an interested person on whom formal notice is served does not serve written defenses within twenty days, the probate court may consider the pleading ex parte, Florida courts treat this rule as merely procedural; it is "`in no sense' a statute of limitations or a mandatory non-claim provision." Tanner v. Estate of Tanner, 476 So. 2d 793, 794 (Fla. 1st DCA 1985).

An Orange Park daughter loses her mother and only then realizes that the deed to the family home was in her father's name, alone. Her father had children from a previous marriage, her father died many years ago, and her father did not leave a Will. According to the Florida Intestate Succession law if one dies without a will, property passes in a specific manner. Once the mother passed away, the home would then pass to the father's children, all of them.

Whether you have a relationship with your half-siblings and whether you know where they are currently living, may make a difference in how easy or complicated your efforts to obtain ownership of the family home will be. If you need advice, or are wondering what you should expect in your efforts to obtain title to the home, speaking with experienced Orange Park probate attorneys will benefit you.

In Florida, A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration.

(a) At the rate of 3 percent for the first $1 million.
(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.
(c) At the rate of 2 percent for all above $5 million and not exceeding $10 million.
(d) At the rate of 1.5 percent for all above $10 million.

In addition a Florida Personal Representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:

(a) The sale of real or personal property.
(b) The conduct of litigation on behalf of or against the estate.
(c) Involvement in proceedings for the adjustment or payment of any taxes.
(d) The carrying on of the decedent's business.
(e) Dealing with protected homestead.
(f) Any other special services which may be necessary for the personal representative to perform.

If the probate estate is in excess of $100,000 and there are 2 personal representatives, each shall be entitle to a full fee. If there are more than 2, then the PR in possession of the home shall be entitled to a full fee, and the remaining shall split an additional fee.

If the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered.

Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the personal representative or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:

(a) The promptness, efficiency, and skill with which the administration was handled by the personal representative;
(b) The responsibilities assumed by and the potential liabilities of the personal representative;
(c) The nature and value of the assets that are affected by the decedent's death;
(d) The benefits or detriments resulting to the estate or interested persons from the personal representative's services;
(e) The complexity or simplicity of the administration and the novelty of the issues presented;
(f) The personal representative's participation in tax planning for the estate and the estate's beneficiaries and in tax return preparation, review, or approval;
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries;
(h) Any delay in payment of the compensation after the services were furnished; and
(i) Any other relevant factors.

Often when someone dies, they have money in a bank account that does not have a joint owner or a payable on death designation (POD). These banks often tell family members that they need "Letters of Administration" to distribute the funds. While this may be trust in some cases, most Florida Probate Courts will only issue Letters of Administration for Formal Probate Cases. If the decedent has been dead for more than 2 years or the assets subject to probate are less than $75,000 then you qualify under the Florida Probate code for a abbreviated probate process. This small estate administration is called Florida Summary Administration.

Once the court enters an order of summary administration, the court order can be used to collect and distribute the money in a bank account or other assets of the decedent.

Even if you qualify for the summary administration there may be reasons why a formal administration is preferable. You should discuss all the issue dealing with the assets, actions of the beneficiaries, and actions of fiduciaries while the decedent was alive with a Florida Probate Attorney to discuss which options make the most sense for you and your family.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Florida Probate costs very based upon they type of probate, type of assets, number of creditors, number of beneficiaries and complexity of the issues involved.

Generally a simple Florida Probate which only involves a homestead is around $1500-$1800 dollars and can take 30 to 90 days on average to complete. This fee is for the legal expenses associated with a Florida Summary Administration where the descendant has been dead for more than 2 years or the assets subject to probate are less than $75,000. A homestead, join accounts, and life insurance are not counted as assets. In addition there will be court costs in the $300-400 range depending on the county and if advertising notice is required or desired.

More complex Florida Probate cases can also be handled on flat fees but many are calculated based upon a percentage of the assets subject to probate + some amount for dealing with the non-probate assets.

If you would like to get a quote on a Jacksonville Probate or a Florida probate you should Contact a Florida Probate lawyer. Only after a summary of what the circumstances are, can an accurate quote be given.

The Florida Bar has released consumer information on Florida Probate where they describe many of the issues related to Probate in Florida. They discuss the following:

1. WHAT IS PROBATE?
2. WHAT ARE PROBATE ASSETS?
3. WHY IS PROBATE NECESSARY?
4. WHAT IS A WILL?
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED?
8. WHO SUPERVISES THE PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES PROBATE TAKE?
19. HOW ARE FEES DETERMINED IN PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE TRUST?

If you have questions about a Florida probate case please contact a Florida Probate Lawyer.

Your Florida Estate Planning Lawyer will tell you that being appointed the PR / executor of an estate is not easy. The PR takes a personal risk and large responsibility to the estate of the decedent, the IRS, and the beneficiaries.

The main job of the PR is to manage the administration of an estate. Many small estates in Florida are distributed without the need of a Personal Representative or Executor. If the decedent had valid Florida Will, the PR can be name from the will, if not the court will appoint a PR based on qualifications and an order of priority. Generally the spouse is the first to be chosen as a PR, next the adult children along with any children who have legal guardians can be the PR. There is a statutory scheme to determining who will be the PR in a Florida Probate Case.

The PR will be responsible for locating the will, and additional documents to help determine what the debts and assets of the decedent are. In Florida probate requires a Florida Attorney. Once you are appointed as the PR, the court will issue you Letters of Administration. This document allows you to act on behalf of the estate. When you take actions, you will have to notify any interested parties (beneficiaries and creditors). The assets of the estate may be used to pay valid claims. One very important job of the PR is to file all current and final tax returns. This is one area where the PR has personal liability for unpaid taxes, penalties, and interest. Once all of the assets have been accounted for, creditors paid, and beneficiaries determined, the PR will distribute the remaining assets as instructed in the will or by the intestate statutes. The PR is also responsible for filing the accounting (a balance sheet showing the amount of the assets and whom they belong to).

The personal representative is entitled to compensation for the work that they do. The personal representative is also able to hire professionals or others to advise and administer aspects of the estates.

One of the first things your Florida Probate Lawyer should tell you is that as an executor or Personal Representative of a Florida Probate Case, you are personally liable for any unpaid taxes or penalties for the decedent.

Kimberly Martinez-Lejarza has a nice review of the Estate of Ziotowski v. Commissioner. This tax court held that the failure of the two executors to file the 706 estate return made them liable for the taxes, penalties, and interest even though their attorney failed to inform them of the tax, filing, and due date.

Kimberly does a good job of analyzing the case stating:

That there was no way the estate could possibly stand upon its argument of reasonable reliance on the advice of counsel: there was no evidence the executors had even asked their attorney for advice as to whether the return was due on time, let alone that they had received such advice. In its analysis, the court also pointed to testimony given by one of the executors that further demonstrated the executors' complete disengagement from the estate administration process, including the preparation of the estate tax return. In the end, the estate was held liable for the additional tax generated as a result of the late filing.

When it comes to taxes, you the PR is ultimately responsible. Make sure your Florida Probate Lawyer understands this before you learn the hard way

Florida Probate is a legal process through which your Florida Probate Lawyer / Attorney files documents so that the following can happen

(a) a judge determines whether or not the decedent's will if any is valid;
(b) a personal representative is appointed to:

(1) collect the decedent's assets in his or her probate estate,
(2) pay the decedent's legal debts, and
(3) distribute the remaining assets in the decedent's Florida probate estate to the individuals or entities entitled to the assets in accordance with the will or laws of Florida intestacy; and

(c) the court approves the transfer of the decedent's assets to the individuals and entities designated in the will or the laws of intestacy.

The probate court will also determine the rights, if any, of a spouse and children to the decedent's property in addition to what they have been left in the will and supervises any claims filed against the estate, objections to claims and probate claims which are barred by time.