When someone passes away in Florida, their estate may need to undergo probate—the court-supervised process of distributing estate assets to heirs and paying the creditors of an estate. Probate may be required regardless of whether the deceased left a Last Will and Testament. The asset type and how it was titled at the date of decedent’s death is often what determines whether an asset must be included as part of a probate estate.
Florida probate laws provide for a few types of probate administration, the fastest and simplest of which is Summary Administration. Learn what Summary Administration is, how an estate qualifies, and how a homestead property is handled as part of a Summary Administration proceeding.
Qualifying for Summary Administration
As the name suggests, Summary Administration is a shortened form of probate, as compared to Formal Administration, which generally requires more time, effort, paperwork, and costs. However, Summary Administration is available only for estates that meet either of the following two requirements:
1) The decedent passed away two or more years prior to the commencement of probate proceedings;
2) The value of the estate, minus any property exempt from creditor claims, is $75,000 or less. Homestead property (i.e., your primary residence), is considered exempt so your homestead can be of any value and as long as the rest of your assets that have to go through probate do not exceed $75,000, your estate can meet the test to qualify for Summary Administration.
Moreover, if the estate meets either of the above criteria but is intestate – meaning the decedent did not leave a Last Will and Testament – then the administration of the estate is carried out under Florida’s intestacy probate rules.
The Summary Administration Process
To commence Summary Administration, a petition must be filed with the probate court. This may be done by any beneficiary or by the person nominated as the personal representative (also known as the executor) in the Will. For estates without a Will, this is usually carried out by one of the beneficiaries of the decedent, such as the surviving spouse or next of kin.
As set forth in Chapter 735 of the Florida Statutes, the Petition for Summary Administration must include the following information:
- Facts proving that the estate is eligible for Summary Administration.
- A complete list of the estate’s assets and their market value.
- Information regarding any debts or unpaid claims.
- A plan detailing how the assets will be distributed and to whom.
The petition must be signed and verified by the surviving spouse, if any. While there is no standard form for a Summary Administration petition, so long as it meets the criteria set forth in Chapter 735 of the Florida Statutes, it will be considered proper.
If the probate court accepts the petition as accurate and complete and other statutory requirements are met, it will issue an order for the distribution of the assets. Unlike in Formal Administration, there is no personal representative appointed – the petitioner will give notice to creditors that the estate is undergoing Summary Administration and the probate court order the distribution of assets once any claims are settled and all other required documentation is filed.
Dealing with Creditors
Unsecured creditor claims are generally not an issue for Summary Administration proceedings where the deceased passed away more than two years ago, since Florida probate laws require unsecured creditors to file a claim within two years of the decedent’s death, or else be barred from any future claims. Secured creditors, like a mortgage lender, do not have to worry about the two-year claims provisions and can file a foreclosure against an estate property even after the two-year creditor claim period has expired.
Protecting the Homestead Property
If the deceased had a primary residence in Florida, then the State’s homestead laws will apply alongside probate laws. A homestead determination is made via a separate petition that is filed in the Summary Administration proceeding. Once the Petition to Determine Homestead is filed, the probate court must rule whether the deceased’s property was his homestead property before that homestead property can transfer automatically to the heir, as set forth in the Florida Constitution. Until this process of establishing the heir’s legal ownership of the homestead property is complete, the heir will not have clear title to convey and a new buyer cannot be issued a title insurance policy.
Note that the market value of the homestead property is not factored into the overall value of the estate with regard to the $75,000 or less value determination used to qualify for Summary Administration; if the homestead property is the only asset in the estate, it directly qualifies for Summary Administration regardless of its market value. This is because homestead is considered to be an “exempt” asset under Florida probate laws.
Often, an Order for Summary Administration will be entered simultaneously with an Order Determining Homestead. This increases the likelihood that Summary Administration will be complete within its usual duration of one to three months. However, depending on the circumstances of the estate, or if the probate judge requires it, a three-month creditor waiting period may be required before the Order to Determine Homestead is entered.
How Farshchian Law Can Help
Although Summary Administration is generally faster and simpler than Formal Administration, it still requires a lot of paperwork, due diligence, and legal knowledge to navigate smoothly. If a document is miswritten or misfiled, it could significantly delay the probate proceeding and lead to more expenses down the road. If there is a homestead property involved, it becomes even more important to work with a qualified attorney to ensure that the homestead property is properly classified as such and protected from certain creditor claims.
No matter the type of probate proceeding, Farshchian Law’s probate and real estate attorneys have the expertise, dedication, and experience to see the process through to the end. Do not navigate the Summary Administration or Formal Administration process alone. To learn more about our probate services and for a free consultation with an experienced Florida probate attorney, please call us at (800) 604-1871 or send an email to Probate@JFRealEstateLaw.com. We provide real estate, probate, estate planning, and title/closing services throughout the State of Florida.