Probate refers to the judicial proceedings by which the estate of a decedent is administered and distributed under supervision by the probate court in accordance with the decedent’s will or pursuant to Florida’s law of “intestacy” where the decedent died without a will. A common misconception is that having a valid will avoids “probate.” That is not true. If the decedent died owning property in his or her own name alone that requires retitling to transfer ownership to an heir or beneficiary, with or without a will, a probate proceeding will be required. Generally, probate cases are filed in the county where the decedent resided at the time of death or where the property in question is located.
In Florida, probate cases are required to be administered and closed within one year after being filed with the court but there are exceptions where for example the Personal Representative is required to file a federal inheritance tax return or in the event the estate is involved in some sort of litigation. There are two main types of probate cases in Florida, Formal Probate Administration and Summary Probate Administration.
Formal probate administration proceedings are required where the value of the decedent’s probate assets is greater than $75,000 (not including the value of the decedent’s homestead, if applicable) or where the decedent has directed in his or her will that the estate be administered by the court. Formal probate requires the appointment of a personal representative to administer the estate and that formal notice of the estate’s opening be published in a local paper of general circulation in the county where the probate proceeding is filed. Formal estate administration involves more legal requirements and takes longer to conclude than summary estate administration. That said, in many cases it may be a better option even if the estate would otherwise qualify for summary probate administration. For example, if there is real potential for disputes among heirs or family members, having probate court oversight may be beneficial. Likewise, in cases where the beneficiaries of the estate wish to have a personal representative appointed to liquid the assets of the estate and distribute cash rather having title to the property passed out to them as joint owners this would be particularly true in cases where the heirs live in multiple locations or out of state.
Summary probate proceedings are available where: (1) if the decedent left a will, it does not direct administration, (2) the value of the probate estate does not exceed $75,000 – excluding the value of the decedent’s homestead or (3) the decedent has been dead for more than 2 years. In summary probate cases no personal representative is appointed. The estate administration merely involves filing of petition for summary administration which discloses the list and estimated value of the assets of the estate that demonstrates that the estate qualifies for summary administration, provides a statement in regard to the indebtedness of the estate and properly provides for payment of valid creditor claims out of non-exempt estate assets, if any, and properly informs any heirs or beneficiaries not consenting or joining the petition.
If you live in the DeLand, FL area of Volusia County, including DeBary, Deltona, Lake Helen and Orange City, and you are administering and estate that needs to go through Probate, or you have a relative that died "intestate", contact Clare Ann Keijer, Attorney at Law today at 386-736-3660.