small probate florida

Many consumers don't realize that a family member or other interested person is allowed to settle a small probate estate in Florida. It is a myth that an attorney must be involved in every estate. If an estate is small enough to qualify for the Summary Administration of Estate process; or is even smaller and qualifies for Disposition of Personal Property without Administration.  

Summary Administration of Estate

A family member, interested party, heir or beneficiary may be able to file the small probate documents for Summary Administration of Estate pro se. In general, Summary Administration of Estate is appropriate if the value of the estate is less than $75,000. excluding the value of exempt assets such as homestead real property and personal property. If a home is designated as the decedent's Florida homestead, the value of the property is exempt, but the real property still needs to go through probate in order to transfer it from the decedent's estate to the name of a beneficiary or heir.

Florida is still one of the preferred states for retirees, and It is common for someone to pass away owning property in Florida, such as personal property, bank accounts, a home or timeshare. Their primary estate may have already been settled in their home state, but the family then discovers that in order to sell or use the property in Florida they must go through probate in Florida. In our current real estate market some second or retirement homes are valued under $75,000. 

Is there a will; and is the will self-proved?

If the decedent left a proper will or if there is no will but there is a surviving spouse, the paperwork is fairly straightforward. It is important to determine early on whether the will, if there is a will, was properly made – is self-proving. In Florida there is a separate document that is required, and nowadays is usually created at the same time as was the will, called a Self-Proving Affidavit. This affidavit is usually attached to the will at the time of signing and they are kept together until needed. The Self-Proving Affidavit verifies the validity of the will, and the identity of the witnesses.

Intestate Succession 

If the decedent failed to make a valid Last Will and Testament, then his or her property will pass under the laws of intestacy to the decedent's heirs. But which state law will govern? If the property isn't real estate, then the intestacy laws of the state where the decedent lived at the time of death will govern. On the other hand, if the property is real estate, then the intestacy laws of the state where the real estate is located will govern even if these laws are different from the laws of the state where the decedent lived.

Who Inherits?

If your spouse or parent dies without a Will, Florida law determines who will inherit his or her property. These laws, called intestacy laws, are essentially state-written Willls that determine who gets the decedent's property.  The word "intestate" describes a person who dies without a will.  A person who dies with a Will is said to die "testate."

Generally, in intestate succession, property goes to close family members, starting with a surviving spouse and children, and then gradually widening out to parents, siblings, nieces and nephews, grandparents and their legal descendants, and more distant relatives after that. If absolutely no relatives can be found, then a decedent's property goes to the state.

Petition: Florida Statute 735.203

(1) A petition for summary administration may be filed by any beneficiary or person nominated as personal representative in the decedent’s will offered for probate. The petition must be signed and verified by the surviving spouse, if any, and any beneficiaries except that the joinder in a petition for summary administration is not required of a beneficiary who will receive a full distributive share under the proposed distribution. However, formal notice of the petition must be served on a beneficiary not joining in the petition.

Despite the plain language of the above statute some clerks of court and even some judges are adamant that a Petition for Summary Administration of Estate must be signed and filed by an attorney. As far as we know, Sarasota County and Washington County refuse to allow pro se litigants to file summary administration of estate. There may be other counties with this stance, but we are not aware of them. Please let us know if your documents are refused in any county. 

Disposition of Personal Property without Administration

Disposition of Personal Property without Administration is available to reimburse family members for their out of pocket expenses, such as funeral expenses, related to the death of their relative. The ceiling on the amount for Disposition of Personal Property without Administration seems to vary somewhat by county, and is generally around $6,000 - $12,000. These estate assets must be liquid assets - if the decedent left real estate, Disposition of Personal Property without Administration cannot be used.

To use this process, the value of the estate may not exceed the total of funeral expenses; the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness; and the value of exempt personal property. 

735.301 Disposition without administration.

(1) No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, 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.

(2) Upon informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that subsection (1) is applicable, 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.

(3) Any person, firm, or corporation paying, delivering, or transferring property under the authorization shall be forever discharged from liability thereon.

For document preparation assistance for Summary Administration, please submit the form below. Or call: 800-515-0496.

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