Florida Estate Attorneys
Summary or Formal Administration?
There are several levels of probate in Florida depending upon the size and complexity of the deceased's estate. Formal administration is the most thorough administration involving the appointment of a personal representative and formal proceedings to identify and pay creditors followed by the accounting for and distribution of the assets of the estate to the intended beneficiaries. For smaller estates, there is an abbreviated level of probate called 'summary administration' which is designed to expedite the closing of small estates.
Florida Summary Administration
Smaller estates can be administered in an expedited procedure known as 'summary administration' which is controlled by Florida statutes as follows:
735.201 Summary administration; nature of proceedings.
Summary administration may be had in the administration of either a resident or nonresident decedent's estate, when it appears:
(1) In a testate estate, that the decedent's will does not direct administration as required by chapter 733.
(2) That the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years.
Summary Administration avoids the necessity of the appointment of a personal representative and notice to creditors can be avoided since the beneficiaries become individually liable for the claims of creditors by taking their share of the estate. Summary administration is very useful in cases where there are no creditors or only a few identifiable and cooperative creditors who are willing to make 'arrangements' with the beneficiaries as to the payment of their claims.
Florida Probate - Formal Administration
When a person dies leaving a valid last will and testament, and there are assets that were owned by the deceased, there may be a necessity to 'probate' the will and begin the administration of the estate in the appropriate Florida court. Not all wills must be probated. If all the deceased assets were titled in such a way that title passed automatically by operation of law to the intended beneficiary, there may be no need to probate the will. However, Florida law does require that the will be 'deposited' with the Clerk of the Court for safekeeping.
Petition for Administration
The probate proceedings begin with the filing of a petition with the court to open the administration and prove the will to be the valid will of the deceased.
Proof of Wills
A document purporting to be a will is proved as provided in Florida law as follows:
733.201 Proof of wills.
(1) Self-proved wills executed in accordance with this code may be admitted to probate without further proof.
(2) A will may be admitted to probate upon the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk.
(3) If it appears to the court that the attesting witnesses cannot be found or that they have become incapacitated after the execution of the will or their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated by the will as provided in subsection (2), whether or not the nominated personal representative is interested in the estate, or upon the oath of any person having no interest in the estate under the will stating that the person believes the writing exhibited to be the true last will of the decedent.
A personal representative, usually nominated in the will, is appointed by the court to manage the affairs of the estate. The deceased is allowed to nominate the persona he or she desires to act in this capacity, but the Court retains the ultimate control over who is appointed. The personal representative may be required to post a fiduciary bond, but the deceased can waive the bond by language in the will requesting that the bond be waived. Again, the court controls the making or not of a bond.
Powers of Personal Representative
The personal representative has broad powers to act without court order in and about the normal activities of gathering the assets of the estate, paying claims of creditors, hiring professionals, such as lawyers, accountants or appraisers, and other routine matters needed to settle the estate.
The personal representative must give notice to all known creditors and publish a notice to creditors in a newspaper in order to identify the claimants and amount of claims against the estate. Claims are normally required to be filed within three months of the publishing the notice to creditors.
Accountings and Final Distribution
After the assets are identified and gathered and all the claims are paid, the personal representative must file and accounting and make a proposal for the distribution of the remaining assets of the estate. Once the proposed distribution is approved, the balance of the estate is disbursed to the beneficiaries according to the provisions in the will.