| Probate in Florida |
| Florida has a very detailed probate system set forth in the
Florida Statutes and also in the Probate Rules adopted by the
Florida Supreme Court. The Sunshine State’s system is
logical and covers nearly all situations that arise, but it
has several disadvantages and pitfalls. |
 One negative aspect of Florida’s probate law is that
most administrations are required to employ an attorney, for
two reasons. First, Florida has a rule that unless the personal
representative (executor) is the only beneficiary, he or she
must hire a licensed attorney to assist in the probate administration.
The rationale appears to be that, because the interest of creditors
and beneficiaries can be harmed by a personal representative,
intentionally or unintentionally, the protection of a lawyer
for the estate is necessary. Second, as a practical matter,
Florida’s system is too complex for many personal representatives
to follow without guidance, and the courts are not set up or
staffed to provide probate legal assistance. In other words,
don’t count on the court clerk’s office to guide
you through, as they might in a small claims action or domestic
restraining order. Probate takes too long and has too many
rules for the clerk’s office to help people through,
in most cases.
The normal probate process
Florida uses a “short form” of probate for certain
smaller estates, which is quicker and cheaper than the “formal
administration” used for most probate administrations.
Summary administration can include any value of “homestead” so
long as the “non-exempt” property does not exceed
$75,000. Summary administration can also be used in any size
estate if the decedent has been dead more than two years. Formal administration requires a minimum of four months
to complete, and most take longer. If the estate is taxable
and a federal Form 706 (estate tax return) must be filed,
that alone will require most estates to be open more than
a year. Nontaxable estates can normally be closed within
five to nine months from beginning, if there are no complications
and if all the assets and debts can be immediately determined
and taken care of.
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What does “probate” consist of?
The following is an over-simplification: The process starts
with a petition to open the estate and name the personal
representative. When that is done, a Notice of Administration
is published in a local newspaper and is also sent to beneficiaries
and other “interested persons.” Creditors generally
have 90 days in which to file their claims, and once the
period of time for creditors’ claims has passed, the
personal representative can pay the debts and distribute
the remaining estate. Once done, a petition for discharge
is filed, and the estate closed. While this summary may sound
simple, probate is a fairly complex system of required and
optional tasks by the personal representative, the attorney
and the tax consultant (often a CPA). Of course, the simpler
the assets and the decedent’s plan of distribution,
the simpler probate will be. A single house and bank account
left to a single beneficiary will no doubt be simpler to
probate than real estate in four states split among 13 beneficiaries,
some of whom are minors. |
Colleen White is an excellent probate attorney, in all
counties, she understands that some personal representatives
will prefer to hire a local attorney. We’re not “local” to
the courthouse in all cases, but usually we don’t need
to be as long as the U.S. Postal Service keeps working. We
offer Florida personal representatives, wherever they are located,
a modern, efficient and economical alternative. If
you would like to discuss the administration of your loved
one’s
estate, please call or email to schedule a telephone conference
at no charge.
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