Probate in Florida
Despite the adoption of the Uniform Probate Code (UPC), either in whole or in part by many states, the rules governing wills, probate and the disposition of a decedent's estate continue to be driven mostly by individual state regulations, codes and court precedents. Therefore, when an individual dies, it is imperative that the decedent's survivors educate themselves about the laws and processes in operation in the state in which the decedent last lived.
Florida has a well-developed probate code as well as a long history of court precedents built upon probate laws that have been in force since the early 1800s. The Florida Legislature continually updates and revises its statutes, some of which have been adopted from the UPC and some that are particular to Florida.
Florida's Probate Code, implemented in 1933, deals extensively with wills, the administration of estates, and the disposition of probate property. Florida statutes also contain detailed provisions known as "intestate rules," which apply if a decedent dies without leaving a valid will and had property in his or her sole name at the time of death.
Florida does not have probate courts, per se. Instead, all probate matters are adjudicated in the probate division of the Circuit Court in the county where the decedent last lived. The state constitution gives the Florida Supreme Court the right to adopt rules for probate administration procedures in all its courts.
The Personal Representative
In Florida, a decedent's estate must be represented by a "personal representative" appointed by the court. The personal representative (called an executor in some states) is chosen by the probate judge based on a statutory order of preference, depending on whether the estate is testate (with will) or intestate (without will).
The personal representative can be an individual, a bank, or a trust company authorized and qualified to exercise fiduciary powers in the state. An individual serving as an estate's personal representative must be a Florida resident unless he or she is a spouse or close relative of the deceased. Convicted felons and minors are not eligible to be personal representatives.
Some obligations of the personal representative are to:
Collect and inventory all of the estate's assets
Find any potential beneficiaries and heirs
Pay any of the decedent's debts
Distribute the estate's property
In addition, Florida Probate Rule 5.030 requires that, in most instances, a state-licensed probate attorney must represent every personal representative.
Florida Probate Administration
There are three types of administration of a decedent's estate in Florida: formal administration, summary administration, and disposal of personal property without administration. Only in the latter case can the process proceed without representation by a probate attorney.
Formal administration is used when a decedent has been dead for two years or less and assets include real estate or the "probate estate" otherwise exceeds $75,000 in value.
The formal probate procedure requires the appointment of a personal representative who must receive "letters of administration" by the probate judge that gives the authority to act on behalf of the estate. The process can last from four to six months or even go on for several years, depending on the nature and complexity of the estate.
Read more about formal administration
Summary administration is a process whereby the disposition of assets does not require lengthy or costly probate proceedings, and in some cases, does not require the appointment of a personal representative.
It can be used if the decedent has been dead for more than two years or if the estate's probate assets are all in the decedent's name alone and do not exceed $75,000. In addition, in a testate estate, summary administration may be used unless the will specifically requires formal administration.
Summary probate administration can be accomplished in a little as six weeks, but can also take as long as several months.
Read more about summary administration
Disposition of Personal Property without Administration
This process is a non-administrative procedure. It is available if a decedent's estate assets consist solely of exempt property, such as an automobiles and household furnishings up to a net value of $20,000, and/or non-exempt personal property "the value of which does not exceed the sum of the amount of preferred funeral expenses ($6,000 maximum) and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness."
In cases of disposition of personal property without administration, the petitioner must provide the court, either by mail or affidavit, with paid receipts for medical and funeral expenses, a death certificate, documents verifying the assets to be released, and a will if there is one. If the court is satisfied that the petitioner is entitled to the decedent's assets, it will authorize their transfer or release.
Ancillary administration takes place when an out-of-state resident, with a will or without, leaves real or personal property in Florida, is owed by Florida creditors or has liens against Florida property. It generally follows the "domiciliary" probate which has already occurred in the state in which the decedent died.
For a Florida petitioner to forgo formal ancillary administration, he or she must request that the "foreign" will be admitted to probate any time after two years from the decedent's death so that title to Florida property can pass to a recipient; or, if the property is worth $50,000 or less, a transcript of the domiciliary proceeding can be filed in Florida, identifying the beneficiaries of the estate, thus allowing the property to be distributed.
Florida Intestacy Laws
A person who dies without leaving a valid will is known as "intestate." Because there are no provisions for the distribution of property when there is no will, Florida statutes explicitly provide for the dispersal of probate assets to a decedent's heirs in the following order of priority:
If there are no surviving descendants of the decedent, the entire estate passes to the surviving spouse.
If there are one or more surviving descendants of both the decedent and the surviving spouse, the surviving spouse receives the entire estate.
If the decedent has at least one child with a person other than the surviving spouse, the surviving spouse receives one-half of the probate estate, and the decedent's descendants share the remaining half.
If the decedent was not married at the time of death, but was survived by one or more descendants, those descendants will receive all of the decedent's probate estate, divided among them.
Florida follows a pure per stirpes system, meaning the descendants of a deceased heir take that person's share by representation. In other words, if an intestate outlives his children but is survived by grandchildren, the grandchildren take the share their deceased parent would have received.
If the decedent was not married at the time of death and had no living descendants, the decedent's probate estate passes to the decedent's surviving parents, if they are living, otherwise to the decedent's brothers and sisters.
If the decedent is not survived by any of the close relatives described above, the decedent's probate estate will pass to more remote heirs.
When a person dies intestate and is not survived by any heirs, the decedent's probate estate passes to the State of Florida under the process of "escheat."
Family and Spousal Protection
Because the administration of an estate can be costly and lengthy, Florida has laws that protect a decedent's surviving spouse and dependent children. This is done with "set-asides."
These set-asides place the welfare of the decedent's family above the interests of other heirs and/or creditors. They provide a spouse and dependent children of a decedent a place to live, money which with to live on while the estate is in administration, and certain personal property formerly owned by the decedent. They include a family allowance, a homestead exemption, and personal property exemptions.
A cash allowance of up to $18,000 can be awarded out of the estate's assets to a decedent's family, but only after payment of administrative expenses, attorney's fees, medical and funeral costs, and any owed taxes. Family members can claim a family allowance in either testate or intestate situations, and even if they are disinherited in a will.
Florida's homestead exemption – one of the strongest in the nation – protects the principal family residence from forced sale or attachment by creditors, except in certain situations, if at the time of death it was owned solely by the decedent. The homestead exemption, written into Florida's constitution in 1868, defines a homestead as a home on up to one-half acre in a municipality, or up to 160 acres of rural land with a home on it.
Florida also exempts certain personal property, such as home furnishings, appliances, food, clothes, jewelry, firearms, sporting equipment, automobiles, farm animals, and pets, from distribution to heirs and beneficiaries, as well as from sale by creditors. The maximum exemption is set at $10,000 worth of value, and a surviving spouse or surviving children must file a petition to claim the exempt property.
Florida probate law also protects a surviving spouse from receiving an insufficient portion of a decedent's estate. For instance, if a surviving wife has only been bequeathed a small share of her deceased husband's estate, she may choose to take an "elective share," instead, equal to 30 percent of her spouse's net probate estate, as well as extensive non-probate assets, in addition to any family allowance, homestead and/or personal property exemptions, to which she is entitled.