The Different Types of Probate
According to Florida law there are four different types of probate administration: disposition without administration, summary administration, formal administration, and ancillary administration. These types all have different proceedings and which one applies depends on your situation would depend entirely on the conditions and size of the decedent’s estate.
Disposition Without Administration
Disposition without administration is used only in what is considered “small estates.” To put it clearly, this type of administration is to reimburse the person who paid for the funeral and medical expenses. The three qualifications are as follows: no real estate was left behind, the assets to not exceed the amount of expenses, and personal property is exempt from claims of creditors.
When dealing with this type of proceeding, it usually doesn’t call for hiring a lawyer. The reason is because in situations like this, there is usually not going to be enough money involved. Here is a short list of documents that the courthouse will require:
- Copy of the death certificate
- Copy of statement from hospital and funeral home
- Copy of all of the deceased’s financial statements
- The Will (if applicable)
You need to provide these documents to the court and pay their associated fees. Once that is complete, the financial institutions that handle the decedent’s assets will disperse the assets to the proper parties.
The following links are to some official Disposition without Administration resources in some of the counties in South Florida:
- St Lucie County
- Broward County
Summary administration is a less time consuming probate process in which the petitioner uses fewer forms to inform the Court of the deceased’s assets and the request of those assets to the heirs. Usually, this process takes around 1 to 3 months. There is no personal representative or executor involved. This process only applies to two scenarios; if the Decedent died more than two years ago or if the value of the estate is less than $75,000.00.
The first step is to file a petition for summary administration. If married, the surviving spouse must sign and verify the petition. The beneficiaries named in the will, if there was a will left, don’t have to sign anything but will be notified. In the petition will be a list of the deceased’s property, assets, their respective values and who is to receive what. If the court approves the petition, they will issue what is called an Order of Summary Administration. This transfers the decedent’s property to the rightful heirs.
Beware: the beneficiaries are liable for any claims creditors may make inside of the two-year period after the death. If the decedent seems to have numerous creditors, it may make more sense financially to go through a formal administration. For example, if the decedent owed $4,000 on a credit card and an heir got their $2,500 motorcycle, the heir would be responsible for $2,500.
Formal Administration is what is most common throughout the state of Florida. The process begins when a petition to designate a personal representative is filed by an executor or someone who has a stake in the deceased’s estate. Once the court appoints a personal representative the case would be considered opened. After the appointing and opening of the case, the next step would be to submit the will, if there is one.
After the personal representative is appointed, the court will then issue what is known as ‘Letters of Administration.’ These letters will give the personal representative the authority to administer the decedent’s estate. The personal representative is in charge of taking stock of the decedent’s assets, getting a valuation of said assets, and paying debts or taxes. After all of that is done, any expenses will be paid and the assets left will be distributed accordingly.
Ancillary administration is a less commonly used probate process. It only applies to scenarios in which the decedent owned property in the state of Florida but was not a resident of Florida. An example would be if someone who owned a vacation home here but had established residency in New York.
Although it is less commonly used than formal administration, the process is quite similar. The elected personal representative in the other state also takes the role of personal representative in Florida. The proceedings in Florida will usually follow the same timeline as the other state.
A way to avoid this scenario, if you are planning ahead, would be to title the property with your beneficiary as ‘owners with the right of survivorship.’ That way the title is automatically transferred to the beneficiary upon death with no probate process.
Which probate process fits your needs? Would the quicker summary administration process suffice or do you need to go through the longer formal administration process? Any form of probate can be complex and confusing without a professional holding your hand through it. If you would like more information about what probate is, check out our article here. At FL Home Buyers we believe in hiring professionals for complex situations like this. We have worked hand-in-hand with reputable law firms to help get our clients through this confusing process successfully.