Dealing with the loss of a loved one is difficult enough without enduring the complexities of probate. You may have heard of the Small Estate Process, also known as the Small Estate Affidavit, which is a way to simplify or even circumvent the often long and complicated probate process. While Florida does not have such an option per se, depending on your circumstances—and whether you hire an experienced probate attorney—you can make the process smoother and quicker than it otherwise would be.
What Exactly is Probate?
The point of the Small Estate Process is to help lessen the burden of a process known as probate in which someone’s estate is handled and winded down with the supervision of a dedicated probate court. It is through probate that a last will and testament is “proved” as valid and carried out in accordance with the terms therein. The individual named as the personal representative or executor of the estate must file relevant paperwork with the court and demonstrate their compliance with the estate plan.
Based on the nature of the estate, the probate court can be heavily involved in the process. For example, it may adjudicate competing claims over estate assets, or challenges against the person named as the executor. A formal (or full) probate administration can last anywhere from six to nine months, but longer timeframes are not unusual depending on the circumstances and complexities of the estate. A summary (or shortened) probate administration can take approximately two to four months.
The Small Estate Process and Florida’s Answer to it
In many jurisdictions, the Small Estate Process comes into play in scenarios where someone dies without a beneficiary of a life insurance policy, bank account, IRA, or 401K. Loved ones trying to claim these funds upon the death of a loved one may execute a “Small Estate Affidavit” that affirms the decedent did not have many assets, and therefore they should receive what little remains without need probate to “prove” it. The Small Estate Process is not used when real estate is involved.
Depending on the laws of the state, the Small Estate Process may be invoked if the estate too small in value under state law to warrant probate. Hence, while Florida does not have such a process, it does provide a similar alternative to “full” probate in the case of smaller estates.
The Three Types of Probate in Florida
For heirs and beneficiaries to take rightful control of a decedent’s probate assets, Florida law provides three options:
- Formal Administration: This is basically a “normal” probate that is the default for most estates with assets totaling over $75,000 in value. It entails the process set forth above: filing a petition for administration with the probate court, publishing a notice to creditors (if the death occurred less than two years ago), appointing a personal representative (i.e., executor), valuating estate assets, etc. Again, the usual timespan is six to nine months, though bigger and more complex estates can take longer.
- Summary Administration. As the name implies, this is the faster and more streamlined probate process, reserved for smaller and simpler estates under $75,000 in assets. Summary administration can also be taken advantage of if the deceased passed away more than two years ago (though depending on the amount of assets and number of heirs, a formal administration may be more efficient even when a summary administration is an option). A summary administration is often also used when the deceased left only their primary residence or “homestead” residence (homesteaded property is exempt from the $75,000 summary administration threshold). With a summary administration, a probate court is still involved and there are some of the same procedures, but things will usually move quickly by virtue of the estate’s size and due to the fact that no personal representative has to be appointed.
- Disposition of Personal Property Without Administration: This method is much closer to the Small Estate Process, and is usually much rarer, since it applies to very specific situations. However, it benefits from being the only type of estate that does not involve the probate court, instead entailing only a filing with the Clerk of Court. To quality for Disposition Without Administration under section 735.301 of the Florida Statutes, the estate must consist only of specific kinds of nonexempt personal property as well as exempt personal property.
For example, nonexempt personal property cannot exceed $6,000 of reasonable funeral expenses nor can it exceed the decedent’s final medical bills for the last 60 days of their most recent illness. Examples of exempt personal property include up to $1,000 of personal homestead property (increased to up to $4,000 if the decedent never claimed or received benefits of the Florida homestead exemption), up to $20,000 in certain household goods (like furniture and appliances), and prepaid tuition programs, to name a few.
(Additionally, there is another type of administration that is sometimes used in parallel with the others: ancillary administration. Ancillary administration deals with Florida assets held by a decedent who is a resident of another country or state. This process can be highly complex when the estate includes Florida-based assets since it basically entails dealing with two or more state laws and probate courts.)
Farshchian Law Can Assist With Your Probate Matters
With or without a Small Estate Process, you will need an experienced and knowledgeable probate attorney to help guide you through settling the estate. Even the smallest or simplest estates still have legal matters to contend with, which best handled with the help of an attorney—especially since you never know what can emerge, whether it is third party claims or unpaid taxes.
With years of experience in both helping to plan estates and helping to wind them down, we have the full breadth of expertise to handle any type of probate matter in Florida. Virtually no estate is too large or complex for our team to assist with. To navigate such a difficult process, both emotionally and legally, it pays to have a sound and trustworthy legal mind by your side.
If you are dealing with the death of a loved one and need a guide through the probate process, call us at (800) 604-1871 or email Probate@JFRealEstateLaw.com.