If a loved one has passed away and you’re left with the will, how do the Florida probate rules affect the process? The answer to this question depends on a number of factors, which we will get to in a minute.
The first thing you should know is that if you possess a decedent’s will, within 10 days of learning of their death, you must file the will with the local circuit court. Once you file the will, you will learn whether the will is valid and whether probate is necessary.
What Doesn’t Go Through Probate Court in Florida?
The first factor to consider is whether any assets that the deceased left behind are exempt from probate. According to Florida probate rules, more than a few types of assets qualify, including:
- Assets in living trusts.
- Assets and property held jointly—joint bank accounts, houses owned by more than one person.
- Assets with a designated beneficiary—retirement accounts, life insurance, POD bank accounts.
As you can see, there are more than a few courses of action you can take to avoid probate outright.
Rules for Probate with No Will
While we’ve primarily written this guide for people who have a decedent’s will, we wish to point out the different rules for probate with no will. Those who pass without a will have passed away “intestate.” That doesn’t mean, however, that the state of Florida will obtain all of their assets. Most of the time, the probate courts will distribute the estate to surviving spouses, children, or other relatives. This is the typical order:
- If the person has a surviving spouse but no children, the surviving spouse will receive the estate.
- If the person has a surviving spouse and one (or more) children with that spouse, the surviving spouse will receive the estate.
- If the person has no surviving spouse but one (or more) surviving children, the children will receive the estate.
- If the person has no surviving spouse or children but living parents, the parents will receive the estate.
- If the person has no surviving spouse, children, or parents, the siblings will receive the estate.
- If the person has no immediate surviving family, Florida will distribute the assets to other living relatives.
Disposition without Administration
If the deceased did not own much property during life, probate might not be necessary. Aside from reimbursement for the person’s final expenses, such as final treatment for an illness or funeral expenses (as stated in Fla. Stat. 735.301.), there is not much need for the courts to be involved. Disposition without administration is only applicable if the deceased left no real estate or if the assets’ value does not exceed the cost of final expenses or the assets were exempt from creditor collection.
To request reimbursement for such expenses, you must fill out a form (Disposition of Personal Property without Administration) and pay the filing fee. You can find the form at the clerk of the court’s office or online.
Summary Administration: A Faster Version of Probate
Summary administration is one option that the Florida probate rules allow under certain circumstances. It is a sped-up version of probate, which takes a few months. This is usually an option for small estates, but any estate can qualify for a summary administration if the:
- Decedent passed away two or more years ago,
- The value of the estate does not exceed $75,000 (excluding non-probate assets).
When the individual has passed away over two years ago, there is often no limit as to how many assets a summary administration can handle.
What About Creditors?
Usually, probate allows creditors an opportunity to recover any debts that the deceased owed them. In Florida, however, that opportunity passes after two years. At the two-year mark, the rules bar creditors from bringing claims to court.
That’s why a summary administration is a good option in these cases. Courts no longer have to deal with notices or other formalities during proceedings, which streamlines the process.
When an estate does not qualify for any of the above options, formal probate may proceed. This process usually takes six months to one (or more) years. Under Florida probate rules, the process runs as follows:
- The will’s executor (which the will should name) must ask the courts to be the estate’s personal representative.
- If there are individuals who would have inherited assets without a will, the court will notify those people so they can object.
- The court then issues the Letters of Administration, a document that gives the executor authority over the estate.
- The executor must then file the will with the court so that it can be validated. This can happen in one of two ways: either the will is “self-proving” (i.e., witnesses signed it in front of a notary public), or witnesses to the will’s signing must give sworn statements under oath about the will’s validity.
- Once the court validates the will, the executor then assesses the estate, pays its debts, and distributes the remainder among those named in the will.
- The executor must submit documents explaining the process to the courts, during which any beneficiaries can object.
- After everything has been distributed, the executor must provide the courts with receipts detailing the distribution and ask that the estate be closed.
Need Help Navigating the Florida Probate Rules?
Whether you are trying to navigate probate for a loved one’s will or want to protect your assets from going through probate, we can help. Don’t wait to protect your estate. Call Casal & Moreno today.