Probate Administration
Generally speaking, the transfer of a decedent’s assets will need to be administered in probate court whenever title to those assets are in the sole name of the decedent with no co-owner who has survivorship rights and no transfer on death instructions or beneficiary designations filed with the asset manager.
Probate is a legal process that ascertains the validity of wills or other documents and oversees the distribution of assets and payment for any debts against the estate. The assets of the estate are distributed according to the wishes expressed in the decedent’s will. If there is no will, then the assets will be distributed according to state law, to heirs, depending on their relationship with the decedent.
Probate can operate either formally, meaning with court supervision, or informally, meaning without court supervision. Generally speaking, informal probate is for smaller estates in which court supervision is not required because there are no uncertainties, legal disputes, or complex administration requirements.
In both formal and informal probates, the first priority of the court is to determine whether there is a will; and, if so, is that will valid insofar as the standards required by law. If the decedent’s will is valid, the probate court in a formal proceeding will oversee the process of settling the estate according to the terms of the will. Intestate (no will) estates will be settled according to Florida inheritance laws.
Formal Administration
A formal administration is typically when an estate’s total value of assets exceeds $75,000. The first priority of the court is to determine whether there is a will (in which case, the probate would proceed as a testate estate); and if so, is that will valid insofar as the standards required by Florida law. If the decedent’s will is valid, the probate court will oversee the process of settling the estate according to the terms of the will. If there is no will; the probate would proceed as an intestate estate and be settled according to Florida’s inheritance laws.
Formal supervision typically includes: managing the distribution of estate assets, including payment of state and federal taxes; hearing any contested claims by creditors or others seeking to collect from the estate; choosing a personal representative when one is not named in the will; deciding which possessions are subject to estate administration; determining a decedent’s true heirs in accordance with state law; ruling on the legitimacy of any claims outstanding against the estate; determining whether homestead property has been properly devised; and supervising the transfer of assets to beneficiaries named in the will or to the heirs pursuant to Florida law, if there is no will.
Generally speaking, a formal probate can be completed in approximately six months, but it often times takes longer. Reasons for delays can include will contests, non-cooperative heirs, property cannot be sold and creditors not being notified or settled.
Summary Administration
A summary administration is typically when an estate’s total value of assets is less than $75,000 or the decedent has been deceased for more than two years. In calculating the value of the estate, exempt assets, such as homestead, are not included in the total values.
Summary Administration is an abbreviated form of probate for smaller estates. In a summary administration, essentially all the required documents are submitted to the court at one time and the court will enter a court order as to who is entitled to the assets. No personal representative is appointed in a summary administration. The court order is the document that declares ownership by the named person; and is used to collect and distribute money in a bank account or other assets of the decedent.
In summary administration, the persons who receive the estate’s assets remain subject to claims against the decedent for two years after the date of death. This time frame can be reduced by publication of notice in a local newspaper.
Ancillary Administration
An ancillary administration is when a non-Florida resident dies owning assets, usually real estate, in the State of Florida. An ancillary probate can be either formal or summary, depending on the value of the assets. With limited exceptions, such as requiring documents from the decedent’s probate in their home state, ancillary probate in Florida is generally treated according to the same rules as if the decedent were domiciled in Florida.
Trust Administration
There is a common belief that if you have a Trust no probate is needed. This is not always true. Unless otherwise required by the trust agreement, a trust may be administered by the trustee without court oversight. However, some of the trustee’s duties are similar to those of a personal representative in a probate. Upon the death of the creator of the trust, the successor trustee must gather all the trust assets, determine and pay all valid creditors, pay any taxes, and supervise the management and distribution of the trust assets. The terms of the trust agreement dictates what is to happen upon the trust creator’s death. Under certain circumstances, documents must be filed with the probate court to comply with requirements that creditors be made aware of the existence of the trust assets.