Probate is the legal process of settling an estate after someone dies. Its purpose is to lawfully distribute a deceased person's property and assets to heirs and beneficiaries. Probate in Florida is supervised by the Probate Division of the Judicial Circuit Court.
Why Is Probate Necessary?
Probate is necessary to finalize a person's financial matters after death, pay owed taxes and debts, and pass ownership of their estate to legal inheritors.
If the decedent left a will, the probate court verifies its validity, interprets the testament, and resolves any contests or disputes. If there is no will, probate proceedings determine who should inherit which assets under Florida law.
How Does Probate Work In Florida?
Probate is a court-supervised process for identifying and collecting the assets of a deceased person, paying the estate's debts, and transferring the rest to lawful inheritors. Here's a brief and simplified overview of the Florida probate process:
1. Court Petition
Probate proceedings are initiated by filing a probate petition with the appropriate Florida Circuit Court, usually in the county where the decedent lived at the time of death. The petition asks the court to start the probate process and appoint a personal representative (in case of Formal Administration), or to distribute the estate (in case of Summary Administration). Probate documents are filed with the circuit court clerk, who maintains an ongoing register of all records submitted during the administration process.
2. Initial Hearing
A Florida Circuit Court judge presides over probate proceedings. During the initial hearing, the judge reviews and validates the decedent's will (if there is one), appoints the personal representative or trustee, and determines which beneficiaries receive what assets according to the will and Florida law.
3. Probate Estate Settling
The personal representative begins settling the estate:
- Gathering information about the estate's debts and assets
- Filing taxes
- Paying outstanding debts
- Contacting heirs and beneficiaries
- Distributing the probate assets
4. Final Hearing
Once the settling process is finished, a petition for the final distribution of the estate is filed. The judge verifies that the estate's debts have been paid, taxes filed, and assets distributed to beneficiaries. Once confirmed, the court closes the estate and ends the probate process.
What Are The Different Types Of Probate In Flordia?
There are four types of probate administration under Florida law:
- Formal Administration
- Summary Administration
- Disposition of Personal Property Without Administration
- Ancillary Administration
The first 3 apply to Florida residents, while ancillary probate is for individuals who had primarily resided in another state.
1. Formal Administration
Formal Administration is the more common form of probate. It involves ongoing court supervision and ensures that the deceased's final wishes are followed and implemented. Legal representation is required because of close oversight of the collection and distribution process.
The deceased person must have resided or owned property in the county of filing to have a personal representative appointed to administer the estate. Attorneys must electronically file all documents on the Florida Courts E-Filing Portal.
2. Summary Administration
Florida allows a shorter Summary Administration for estates with less than $75,000 in assets (including any non-exempt assets besides the home), or if at least two years have passed since the person's death.
Summary Administration has restrictions on how the estate can be distributed. It may be converted to Formal Administration if matters complicate the probate or delay resolution.
The decedent must have resided in the county of filing. Attorneys must electronically file all documents on the Florida Courts E-Filing Portal. Pro-Se filers may file court documents in the Probate Division.
3. Disposition of Personal Property Without Administration
Disposition of Personal Property Without Administration is a form of probate that is not supervised by the court. It only applies to cases when the person has died without land or real property, and their assets are less than outstanding medical expenses, funeral and burial costs.
4. Ancillary Administration
Ancillary Administration only applies to out-of-state residents who had owned property in Florida when they died. The ancillary process oversees the transfer of Florida assets to the state where the primary probate proceedings take place.
Who Is Involved In The Probate Process?
Depending on the case, any of the following may be involved in Florida probate proceedings:
- Circuit Court judge and Probate Division clerks
- A personal representative or trustee, and their attorney
- Probate claimants (such as credit issuers or health care providers)
- Internal Revenue Service (IRS), state or county tax agencies
- Other parties contesting or disputing the decedent's will or trust
How Much Does Probate Cost In Florida?
Formal Administration probate court fees can reach up to $700 or more, depending on case complexity and location. Summary Administration probate court fees can range between $400 to $500.
The 2022 probate fees for Florida's Miami-Dade County are:
- Opening an estate - $232
- Petition and order to admit foreign wills - $232
- Disposal of personal property without administration - $232
- Summary administration for estate < $1,000 - $236
- Summary administration for estate >= $1,000 - $346
- Formal & ancillary administration, curatorship, and conservatorship - $401
- Appeal to District Court of Appeals (Check written to District Court) - $300
- Appeal to District Court of Appeals (Collected by Clerk) - $100
- Filing of verified inventory valued at > $25,000 - $85
- Filing annual accounting for estate valued at <= $25,000 - $20
- Filing annual accounting for estate valued at $25,000 to $100,000 - $85
- Filing annual accounting for estate valued at $100,000.01 to $500,000 - $170
- Filing annual accounting for estates valued at > $500,000 - $250
- Attorney appearing pro hac vice - $100
How Long Does Probate Take In Florida?
- All probates must stay open for at least 3 months for the mandatory creditor claim period.
- Probates in Formal Administration can take from 6 months to up to 1.5 years. Some take longer because of will contents, disputes, collections, encumbered property sales, etc.
- Probates in Summary Administration usually take between three to six months.
What Is A Personal Representative?
A personal representative is a person, bank, or trust company appointed by the judge to settle the probate estate and has a legal duty to administer the decedent's assets according to Florida law.
The term "personal representative" is used in Florida instead of terms like "executor" or "administrator."
What Is A Trustee In Probate Proceedings?
The court might appoint a trustee if the decedent had established a Revocable Trust, a Living Trust, or a Revocable Living Trust. The trustee must administer the estate following the deceased person's will and ensure that the appropriate taxes, debts, and enforceable claims are paid.
Is Probate Required In Florida If There Is A Will?
Even if a will exists, probate is required to validate the will, resolve any disputes, and ensure that the estate is settled according to Florida law.
What Happens To A Probate Estate If There Is No Will?
Florida Statute sections 732.102 and 732.103 specify how a probate property is divided when a person dies without leaving a will. In general, assets pass the closest relative (referred to as "intestate succession") as follows:
- Spouse
- Children
- Parents
- Siblings
- Grandparents
- Uncles and Aunts
- Kindred of last deceased spouse
- Holocaust survivors, if any, descended from the decedent's great-grandparents
Homestead properties are not subject to intestate succession; see below for more details on the homestead exemption.
If the decedent leaves no lawful heirs or beneficiaries, the probate estate transfers to the State of Florida, but this is rare.
What Assets Are Subject To Probate In Florida?
Assets owned by the deceased person in their sole name, or held with other co-owner(s) and lacking provision for transfer at death (such as a will or a trust), are subject to probate in Florida.
Examples of probate assets include:
- A bank or investment account in the sole name of the decedent
- A life insurance policy, annuity contract, or retirement account payable to the decedent's estate
- Real estate titled in the sole name of the decedent
- Personal property, vehicles, jewelry, art, etc
What Assets Are Exempt From Probate In Florida?
Florida Statute section 732.402 and Section 10, Article 4 of the Florida Constitution define certain types of property exempt from probate. Exempt assets pass directly to the decedent's heirs, while non-exempt assets are available for paying the estate's debts.
If a deceased person has a spouse or children, exempt assets include:
- homestead property (see more below)
- two vehicles
- household furnishings
- up to $1,000 in personal property
What Is The Florida Homestead Exemption?
The most important exempt asset is usually the house in which the decedent lived, known as the "homestead property," and is protected from the estate's creditor claims.
Consensual liens, like mortgages, equity credit lines, tax debts, and contractor liens, are not covered by homestead protection. In other words, a property with consensual liens may be sold to cover the liens, even if it qualifies for the homestead exemption.
Certain conditions must be met to qualify as a homestead property:
- The decedent must have resided in the property, intending to make it their permanent residence.
- Single-family homes, condominiums, and mobile homes can qualify for homestead protection.
- RVs and boats can qualify for homestead protection if they are not mobile (fixed to the land or a dock).
- Inside city limits, a parcel of one-half (0.5) acre containing the primary residence qualifies as a protected homestead.
- Outside city limits, homestead protection extends to 160 acres of land containing the primary residence.
- Properties owned by companies and irrevocable trusts are not eligible for homestead exemptions.
Florida law restricts how a person can devise (transfer through a will or trust) their homestead, aimed at protecting the owner's family:
- If a person is survived by minor child or children, the homestead cannot be transferred to anyone other than the children (not even to the spouse).
- If there is a surviving spouse but no minor children, the homestead property can only pass to the spouse with 100% ownership (fee simple estate).
- A married owner may not mortgage, sell or gift the homestead estate to anyone other than his spouse (or to themselves and the spouse) unless the spouse also signs the deed or mortgage. This applies even if the spouse has no ownership interest in the property.
How To Avoid Probate In Florida?
There are several ways to avoid probate in Florida, but the estate owner must complete any of these before their death:
- Joint Ownership Agreement
- Ladybird Deed
- Revocable Trust
- Beneficiary Account
Each of these options has specific benefits and drawbacks. It is strongly recommended to consult with an attorney or an estate planner to evaluate your individual circumstances and choose the best option.
How To File Probate In Florida?
Probate is a complicated process. If you are involved in or have questions about probate in Florida, it is strongly recommended to contact an attorney who specializes in probate administration. The Florida Bar offers a lawyer referral service at (800) 342-8011.
What Are Florida's Probate Laws and Rules of Court Procedure?
The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statute. The rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).
References
- Florida Probate Code, Chapters 731 through 735
- Florida Probate Rules, Part I and Part II (Rules 5.010-5.530)
- Florida Probate Forms
- Florida Probate Checklists
- Florida Courts Help: Probate Actions
- Disposition of Personal Property Without Administration Form (PDF)
- Consumer Pamphlet: Probate in Florida
- Consumer Pamphlet: The Revocable Trust in Florida
- Florida Probate Rules of Court Procedure
- Probate and Guardianship Glossary of Terms