Probate in Florida: Summary or Formal Administration

Probate is a procedure where assets owned by a deceased person (the decedent) are distributed to heirs. In addition, debts owed by the decedent are paid by the estate, if possible. Florida probate proceedings generally proceed in one of two forms: summary administration and formal administration.

First, What Are Probate Assets?

Property that the decedent owned at the time of death may be considered probate assets. The decedent’s share of co-owned property may become a probate asset if provisions do not provide for succession of ownership.

The probate estate generally does not include exempt homestead property, which is protected from the claims of creditors.

Summary Administration

Of the two procedures, summary administration is generally considered to be simpler. However, not every estate will be able to use this type of probate.

To qualify for summary administration:

  • the value of the probate estate cannot exceed $75,000 (non-probate assets do not count toward the $75,000 limit), and the decedent’s debts have been paid or creditors do not object to summary administration probate; OR
  • the decedent died at least two years ago

In general, summary administration is faster and less expensive than formal administration However, heirs may remain liable for claims against the decedent for two years after his or her death.

Formal Administration

Some estates must go through a formal administration.

To begin formal administration probate, an interested party files a Petition for Administration. Usually, the petition is filed with the clerk of the circuit court in the county where the decedent lived at the time of death. Some or all of the following documents will also be filed:

  • Petition to Waive Bond;
  • Waiver of Priority, Consent to Appointment and Waiver of Notice and Bond (signed by all beneficiaries);
  • Original death certificate;
  • Original Last Will and Testament or statement that petitioner could not locate a Will;
  • Oath of Personal Representative and Designation of Resident Agent
  • Oath of Witness to Will (if the Will was not self-proved).

Whether the decedent died testate (with a valid Will) or intestate (without a valid Will) determines, to some extent, which petitions and orders will be necessary.

For example, if the decedent left a valid Will, the judge may sign the following orders:

  • Order Admitting Will to Probate and Appointing Personal Representative
  • Letters of Administration.

If the decedent died intestate, however, the judge typically signs the following:

  • Order Appointing Personal Representative
  • Letters of Administration.

In a formal administration, the personal representative uses the Letters of Administration signed by the probate judge to prove they represent the estate. For example, the personal representative may show the Letters to a bank in order to access the decedent’s bank accounts.

Can Probate Be Avoided?

In some cases, yes. Also, in limited circumstances, property may be handled through a Disposition of Property Without Administration. The best way, though, to avoid probate is through good estate planning.

John Mangan is an experienced Florida estate planning attorney who has been board certified in Wills, Trusts & Estates by the Florida Bar. At the Law Offices of John Mangan, P.A., we have assisted many clients in developing comprehensive estate plans that meet their needs. Call us at 772-324-9050 to set up an appointment or use our convenient Contact Form.

 

See also:

Florida Ancillary Probate

Florida Probate System

Written by John Mangan, Esq.

John Mangan, Esq.

I’m an attorney in Palm City, FL, and I serve clients throughout Martin County, including Stuart, Palm City, Hobe Sound, and Indiantown, as well as those in St. Lucie County, the Treasure Coast, Palm Beach County, and other parts of Florida. The Law Offices of John Mangan, P.A., is an innovative firm providing estate planning services to clients in Florida. We focus primarily on wills, trusts, asset protection, guardianship, and probate administration.