Handling the estate of a loved one can be challenging for the beneficiaries of an estate because of the nuances involved with Florida’s probate laws. This is often particularly true for the personal representative, the person designated to play the central role of carrying out the deceased’s last wishes.
Thus, while it is not mandatory under Florida law to hire an attorney to handle the probate process, it is strongly recommended—even when the process involved is the shortened form of Florida probate called Summary Administration.
Types of Probate in Florida
Florida law provides for two types of probate proceedings: formal administration and summary administration.
Formal administration is often understood as “regular probate,” since it is the standard form of probate in Florida. An estate is required to proceed as a formal probate when the total amount of assets in the decedent’s estate is $75,000 or more, or the decedent died less than two years ago.
By contrast, summary administration may be used where the total amount of assets in the decedent’s estate is less than $75,000 or the decedent has been dead for over two years. The assets that are included in this $75,000 threshold are only those that must go through probate. So, for example, a life insurance policy that has a “payable on death” beneficiary will often not have to go through the probate process for the funds to be paid out to the named beneficiary. Therefore, the policy proceeds will not be included in the $75,000 test.
Furthermore, homestead property (i.e., the deceased’s primary residence) is also not included in the $75,000 threshold because it is considered exempt property. Therefore, the deceased may have a homestead property worth $1 million and the estate’s beneficiaries may still take advantage of the summary administration process.
While both forms of probate have many of the same basic requirements, they differ in the amount of time and paperwork required: Formal administration usually requires more documentation and pleadings to be filed with the probate court. It typically takes at least six months to complete, and possibly longer, depending on the amount of assets to be administered, number of heirs, creditor claims, and other factors that may prolong the probate process. Summary administration may be completed in as little as six weeks and is typically less costly than formal probate administration.
Typically, if there is no way to avoid probate altogether, families and beneficiaries prefer to file for summary administration, though certain factors (like the number of beneficiaries) may result in formal administration being the more viable option. Each probate case presents a unique set of facts and a Florida attorney who specializes in probate law can help assess your probate matter to determine whether formal or summary administration is the best option.
Why You Need a Lawyer for Summary Administration in Florida
Florida law does not require a beneficiary or personal representative to hire a lawyer to file for summary administration upon the passing of a loved one. Nonetheless, going through the court probate process without professional guidance may become a stressful and time-consuming process, especially given the pleadings and legalities involved.
As provided by Florida Statute §735.203(1), “a petition for summary administration may be filed by any beneficiary or person nominated as personal representative in the decedent’s will offered for probate.” Therefore, as the petitioner of the estate, you must be aware of the legal requirements for the petition to open the estate and other pleadings involved, and what is required of you in the process. But do you have the required knowledge and the time to administer the decedent’s estate effectively?
Ultimately, probate may be overwhelming when the individuals involved—especially the personal representative—do not have the adequate knowledge or time to administer the estate properly and efficiently. An experienced Florida probate attorney can save you time and lift the burden that is involved to effectively administer a Florida summary administration proceeding.
Factors to Evaluate for Each Probate Estate
Even though the summary administration process is comparatively faster than formal administration, that does not necessarily mean it is less complex. Every individual has different circumstances, issues, and, most importantly, personal wishes, to be carried out upon death. Accordingly, there are several factors to consider when determining how to probate a decedent’s estate, including:
- Total number of assets that need to go through probate
- Number of beneficiaries
- Existence of an original will
- Validity of the will
- Person appointed as the estate’s executor (i.e., personal representative)
- Third parties’ claims to the decedent’s estate (e.g., extramarital heirs)
- Creditor claims and unpaid taxes
- Third party litigation (such as a wrongful death action)
- Family disputes
- Intestacy (no will left by the decedent)
Each of these variables can impact the trajectory of the proceedings and interact with each other in different ways, presenting further challenges, on top of the existing rules and requirements of every probate proceeding. That is why it is vital to consult with an experienced Florida probate attorney before determining which course of action.
Contact a Florida Probate Attorney from Farshchian Law, P.A.
Our probate attorneys have worked on numerous cases of all levels of complexity, including both summary and formal administration proceedings throughout the State of Florida. Our deep knowledge of the law and ample experience with Florida probate matters will greatly increase your chances of a faster and smoother process. To learn more about how we can guide you through the Florida probate process or to schedule a free consultation, call us today at (305)-901-5628 or (239) 935-8599 or email us at Info@JfRealEstateLaw.com.