Florida Probate

The probate process in Florida has a negative reputation as lengthy, expensive, and sometimes bitter. In some instances, that reputation is well deserved. Understanding the options and methods for planning now to make it easier (and less expensive) for loved ones later is a great gift.

What is Probate?

Probate is court oversight of the distribution of a person’s estate after that person — the decedent — dies. This oversight includes collecting assets, paying debts, and distributing assets to beneficiaries or heirs. When an estate utilizes the probate process, the court issues orders that allow the estate to be distributed. Especially important, these orders tell the people who are holding assets what to do with them — who has authority to act or who receives things.

Probate comes in many forms. The below only scratches the surface in distinguishing the situations that provide for different types of probate.

Types of Probate: No Probate Necessary

Some estates might not require court oversight at all. This can happen if all of the person’s assets that would otherwise go through probate are instead held in a trust. Another way to avoid probate is to make sure all assets that would otherwise go through probate have designated beneficiaries. This can become trickier when real property is involved. But even then, careful planning with an estate planning attorney during life can often avoid the need for probate later.

Types of Probate: Disposition Without Administration

In Florida, some estates do not need court oversight at all. For a small estate with almost no assets—that is, less than $2,000 which is used to cover funeral expenses or final medical bills — the estate can possibly be handled through a Disposition Without Administration. But if the previously mentioned planning has not taken place, and you have more than $2,000 in assets, then yes, likely the estate will need to be probated. (And this does not even address issues involved if the decedent had minor children.)

Types of Probate: Summary Administration

If the assets in the estate that need court oversight — that is, the probate estate — are valued less than $75,000, you might be able to have only a summary administration. Although beneficiaries and interested parties still need notice, a notice to creditors need not be published. However, notice must still be served on known creditors, and sometimes it is better to publish notice even if publishing is not technically required. An attorney’s guidance is important in choosing the best approach regarding creditors.

In a summary administration, typically the court does not appoint a personal representative (sometimes called an executor in other states). Instead, the court issues an order that is presented to whoever has assets; this order directs the holder of the asset (such as a bank) to give the asset to the person entitled, whether that is the person named in the will or, if there is no will, the legal heirs. If there is homestead property, a separate order is needed for that. But even though the court does not appoint the personal representative to act in an official capacity, that person is still in charge of the estate and overseeing what happens. It is a big responsibility.

Types of Probate: Formal Administration

When none of the above are options, the estate likely needs to be probated through a formal administration. In a formal administration in Florida, the court appoints a personal representative to be in charge of the estate. Court oversight can be strict and structured. Depending on the will, and if there was a will, the personal representative might also need to post a bond to serve.

Another part of the probate process in formal administration is publishing and serving formal notice for debts. If the person died owing money, those creditors need to be notified. Florida has a formal system in place to make sure the notice takes place. But more important to many families is that Florida formally ranks which creditors get paid first. Thus, before writing checks to pay debts, it's often wiser to talk to an attorney first.

Will My Estate Need to be Probated?

The answer to that question echoes the answer many attorneys have for most questions: "It depends." The type of probate someone needs depends entirely on the ]unique situation of the person who died. This, of course, is why individualized estate planning is best: people’s situations differ; so too, then, do people’s options for their estate plans differ.

Is Probate in Florida Expensive?

Probate almost always costs more than people want to spend. For both summary administration and formal administration, Florida statutes require that the person trying to probate an estate hire an attorney. Court costs with filing with your county and with filing public notices (and formally serving notice) can easily approach or exceed $500.00. And that's before you pay the attorney at all.

The complexity of the administration (summary typically being less complex than full) will drive the expenses in working with your attorney. And yes, some of those formal administrations can drag out for years. If beneficiaries disagree to the point of bringing lawsuits, the probate process can be tangled and tumultuous. But that tends to be the exception and not the norm.

Many attorneys set a flat or a minimum fee to handle a probate case, billing hourly for work in excess of that minimum. Others bill according to a percentage of the estate. Although probate isn't always highly expensive, often what you pay for probating an estate will exceed what clearer estate planning would have cost.

How Do I Avoid Probate in Florida?

Situations vary. Some individuals or families will benefit greatly from using a revocable living trust. Some people merely need guidance on designating beneficiaries and using particular types of accounts. Others will find it is better to accept a straightforward probate of the estate later than to structure assets in a particular way now. In other words, each person and family is different. Regardless, if you have questions about how probate might affect you and your family, it is best to speak with an estate-planning attorney. Plan now to — hopefully — reduce surprises and frustrations later.