When a loved one dies, it can be difficult to know what to do next. One of the first questions is whether probate is necessary and, if so, which type of administration applies. This guide explains the key questions to consider under Florida law.
1. Determine Whether the Decedent Had a Will
Start by locating the decedent’s original will, if one exists. A person who dies with a valid will is said to have died testate. A person who dies without a will is said to have died intestate. This distinction affects who may inherit and how the estate will be administered.
2. Identify Which Assets are Part of the Probate Estate
Next, determine what the decedent owned and how each asset was titled. Some assets may pass directly to another person outside probate, while others may become part of the probate estate.
- Identify accounts with payable-on-death or transfer-on-death beneficiaries.
- Review jointly owned property and beneficiary-designated assets, such as life insurance and retirement accounts.
- Estimate the value of the assets that remain in the decedent’s name alone.
- Gather information about funeral expenses, final medical bills, and other debts.
The value and nature of the probate assets are important because they help determine whether an estate must be opened and which procedure may be available.
3. Consider Disposition Without Administration
Florida Statute § 735.301 provides a limited procedure known as disposition without administration. This option may allow certain personal property to be transferred without opening a formal probate estate.
Under § 735.301, administration may not be required when the decedent left only exempt personal property and nonexempt personal property whose value does not exceed the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses from the final 60 days of the last illness. An interested party may apply informally, and the court may authorize the payment, transfer, or disposition of the property to those entitled to receive it.
If the estate meets the statute’s requirements, this process may avoid the time and expense of opening a probate administration. Eligibility is highly fact-specific, so the assets, exemptions, expenses, and claims should be reviewed carefully.
4. If Probate Is Required, Choose the Appropriate Administration
If the estate does not qualify for disposition without administration, probate will generally proceed through either summary administration or formal administration.
Summary Administration
Florida Statute § 735.201 governs summary administration. In general, this streamlined process may be available when the will does not require formal administration and either:
- the value of the estate subject to administration in Florida, less property exempt from creditor claims, does not exceed $75,000; or
- the decedent has been dead for more than two years.
The court may enter an order distributing the estate’s assets to the people entitled to receive them.
Formal Administration
Formal administration is generally used when the estate does not qualify for a simpler procedure, when the will directs formal administration, or when the circumstances require the appointment of a personal representative. Formal probate is governed principally by Chapter 733 of the Florida Statutes. Section 733.212 addresses the notice of administration that must be served during the proceeding.
If you have more questions regarding a Probate Administration Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation.
This article is for informational purposes only and does not form an attorney client privilege.