Probate, trust, guardianship and inheritance litigation
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Florida Probate Lawyer

States » Florida » Florida Probate Lawyer

Here is the complete guide to Florida probate, written by a Florida probate lawyer, covering all aspects of probate administration and probate litigation. 

Types of Probate Administration in Florida

Florida has four basic types of probate proceedings:

  1. Formal administration
  2. Summary administration
  3. Disposition of personal property without administration
  4. Ancillary Administration

Formal Administration

A formal probate administration is the most common type of estate proceeding in Florida.  This type of administration is required if the assets of the probate estate are over $75,000, excluding the Florida homestead property.  Learn what assets are probate assets subject to being administered.  

A formal probate administration involves admitting the will to probate (if the decedent had a valid will) and appointing a personal representative who will then administer the estate.  A formal probate administration is also used for intestate estates that are over the $75,000 threshold.

Summary Administration

Summary administration in Florida probate is a type of expedited probate proceeding.  A Florida summary administration can be used if the decedent has:

  • Been dead for more than two years; OR
  • The value of the entire probate estate does not exceed $75,000

See Chapter 735, Part I, Florida Statutes.

To learn more, read Summary Administration in Florida Probate.

Disposition Of Personal Property Without Administration

The disposition of personal property without administration is a type of administration (that does not involve opening probate) available under Florida law when the decedent dies leaving only:

  • personal property exempt under the provisions of section 732.402
  • personal property exempt from the claims of creditors under the Florida Constitution, and
  • nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

Section 735.301, Florida Statutes.  The clerk of court is authorized to assist an applicant with the forms necessary for a disposition of personal property without administration.  Upon informal application for a disposition of personal property without administration, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.

Ancillary Administration

An ancillary probate administration is required in Florida if a non-Florida resident dies leaving Florida property that does not pass by title or operation of law.  This includes real and personal property, credits due from Florida residents, or liens on property in Florida.

Ancillary probate proceedings can be used in Florida whether the decedent dies with or without a will.  See Chapter 734, Florida Statutes. To learn more, read Ancillary Probate Administration in Florida.

Opening the Estate – Formal Administration

Who Can Open an Estate in Florida?

Under Florida law, anyone with an interest in the probate proceeding can seek to open probate.  Obviously, anyone named as a beneficiary in a valid will can open probate.  If a person wishes to challenge the Deceased’s last will in favor of a prior will or intestacy, any such person named in a prior will can open probate, and any intestate heir can open probate.  Creditors can also open probate in Florida.  A surviving spouse is always able to open probate.  Finally, any child omitted from a will, if the will was made prior to the child’s birth, can open probate.  Such a child is known as a pretermitted child, meaning the child is likely to inherit under the laws of intestacy.

Finding the Original Will

Under Florida law, the original of the will needs to be probated. If the original cannot be located, it is presumed destroyed with the intent to revoke the will. Under Florida statute 732.901, the original will is supposed to be deposited with the clerk of court where the deceased resided within 10 days of receiving information that the testator is dead. If the original will cannot be located, but the presumption of revocation is overcome, testimony of at least one disinterested witness will be required to admit the will to probate if a copy can be located, under Florida statute 733.207. If a copy cannot be located, the testimony of two disinterested witnesses is required.

Give Required Notice 

A person named as the personal representative in the valid last will can petition the court to open probate without giving advance notice to anyone, unless a caveat is filed.  A caveat prevents an estate from being opened until the person who filed the caveat is given advance notice and an opportunity to object.  If the person seeking to open probate is seeking to probate anything but the last will of the Deceased, advance notice would have to be given to anyone who would inherit under the last will.  If the person seeking to open probate does not have preference in the appointment as personal representative, anyone with higher preference would have to be given advance notice.

Advance Notice of Probate

Whether by choice or required, if advance notice is provided to certain persons before probate is opened, the process involves filing the Petition for Administration with the court and giving Formal Notice to certain persons.  Formal Notice would have to be given to any person who filed a caveat, as well as anyone with preference to serve as personal representative.  Formal Notice is sent by certified mail or via a process server.  The Notice states that the person has 20 days within which to object to the Petition for Administration.  An objection could be lodged for the following reasons:

  • there is a more recent will that should be probated rather than the one being offered
  • the will being offered for probate is invalid on the grounds of undue influence, incapacity, or similar issue
  • the person seeking to be named as personal representative does not have priority to serve as personal representative
  • the person seeking to be named as personal representative is not eligible to serve

Subsequent Notice of Administration

Notice is also given after a probate estate is opened and a personal representative appointed, in the form of a Notice of Administration.  A Notice of Administration is given to all beneficiaries named in the will, as well as surviving spouses. The Notice of Administration provides important information, such as the deadline for challenging the validity of a will, and alerts the spouse that he or she must claim certain spousal entitlements, such as elective share and family allowance.   The deadline for challenging the validity of the will or the qualifications of the personal representative is 90 days from receipt of the Notice of Administration.  A Notice of Administration can also be given to anyone other than an heir or a surviving spouse, for the purpose of starting the 90-day clock running within which a challenge to the will can be mounted.

Waiver of Notice of Administration

Some personal representatives will ask beneficiaries to sign a Waiver of the Notice of Administration, essentially agreeing to the validity of the will and the qualifications of the personal representative to serve.  Whether you should sign the Waiver depends on whether you wish to challenge the will or the qualifications of the personal representative to serve.  It is often beneficial to sign the Waiver because it will somewhat expedite the handling of the probate case.

Administering the Estate

Once the estate is opened and the required notices provided, the personal representative can then begin to administer the estate.

Marshall Assets, Preserve and Protect

Once the estate has been opened and letters of administration issued to the personal representative, the personal representative should take custody of the assets of the deceased that are properly part of the probate estate. For bank accounts, brokerage accounts, annuities, and insurance payable to the probate estate, the personal representative should retitle such accounts into the name of the estate and/or move such accounts into new accounts in the name of he estate. Normally, positions in stocks would be turned into cash (or reduced) so as to avoid any losses on estate assets. Real estate would be insured, secured, and listed for sale (or distributed to the beneficiaries). Homestead property of the deceased is not normally considered an estate asset so is handled differently.

Assets with beneficiary designations, joint title, or with a pay on death designation might not be probate assets.  

Inventory

During the estate administration process, an estate inventory is filed with the probate court and sent to all of the beneficiaries.  See the Complete Guide to Inventory in Florida.

Florida Homestead

Florida homestead property has a special status in probate, because if the homestead property is bequeathed to heirs at law, the property passes outside of probate, subject to a special set of rules.  See the Complete Guide to Florida Homestead to learn more.

Creditors, Taxes, and Litigation

Creditors

Known creditors must be given a Notice to Creditors, stating that the creditor has 90 days within which to file a creditor claim in the estate. Notice to Creditors must also be published in the local newspaper, alerting such creditors of the deadline for filing creditor claims.  See the Complete guide to Creditor Claims in Florida.

Taxes

Unpaid income taxes can tie up an estate.  The Personal Representative should determine whether the Deceased has any unpaid income taxes, and remedy that as quickly as possible.

Probate Litigation

A will can be contested in Florida on a number of grounds, including the following:

A trust can be challenged on these same grounds.  In many cases, both the will and trust need to be challenged to have a successful outcome.  

In addition to will and trust contests, the personal representative of an estate can be sued for breach of fiduciary duty, for maladministration of an estate.  Likewise, a trustee can be sued for breach of trust or maladministration.  

Other types of probate litigation can include creditor litigation, reformation of a will or trust, and Florida homestead litigation.  

Some litigation in Florida can be handled on contingency basis by a lawyer who handles contingency probate litigation.  

Closing the Estate

Distribution to the Beneficiaries

The personal representative makes distribution to the beneficiaries after all of the difficult and messy issues are resolved. The personal representative might make interim distributions during the administration of the estate, or might wait and only make final distribution to the beneficiaries. For the final distribution, the personal representative can issue a plan of distribution and final accounting to the beneficiaries, to which they can object. In estates with good harmony, the personal representative might only issue an informal accounting and informal plan of distribution, to which they could agree with by signing a waiver or similar document.

Discharge and Accounting

The personal representative, at the conclusion of the estate administration, will file a final accounting, plan of distribution, and petition for discharge with the probate court. If the accounting and plan of distribution was waived by the beneficiaries, those documents would not be filed. The clerk’s office at the probate court will review the petition for discharge to ensure that all requirements of a proper probate administration have been complied with, such as filing the inventory, paying (or successfully disputing) all creditor claims, and filing either the final accounting and plan of distribution (or waivers signed by the beneficiaries for such documents).  A common question is whether a beneficiary should sign a waiver of accounting – that depends on the beneficiary’s level of confidence that the estate has been properly administered.