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Published: 2008-03-26

Florida Estate Procedures

It is necessary to "probate" an estate for any person who has passed away leaving assets titled in their name alone. Any assets which are titled jointly between the decedent and another person or persons should pass automatically to the survivor or survivors and will not require the opening of an estate. Assets such as life insurance benefits, IRAs, annuities, and pensions with a beneficiary designation (other than "to my estate") should pass directly to said beneficiaries, and will not require the opening of an estate under Florida law.

Under certain circumstances, when the probate assets are valued under $25,000.00, or if the decedent passed away more than two years ago, it may be possible to probate the estate using a "Summary Administration". This abbreviated estate administration consists of filing a petition with the court requesting that the court enter an order authorizing that the estate assets be distributed to the person or persons who are entitled thereto.

If the estate is not eligible for Summary Administration, it will most likely be necessary under such circumstances to open a "Formal Administration". The Formal Administration of an estate transfers the assets in the decedent's name alone to the designated beneficiaries of the estate, after the payment of any claims and costs of administration. The procedure for Formal Administration is instituted by the filing with the Court of a Petition for Administration and request for appointment of Personal Representative. Administration of an estate can either be Testate (when there is a Last Will and Testament) or Intestate (when there is not a Last Will and Testament).

A Personal Representative is either a person, or institution with trust powers, which has been appointed by the court to serve in such capacity. The Personal Representative's duties involve working with the attorney for the estate on all paperwork necessary to administer the estate including, but not limited to, marshalling and protecting all estate assets, preparing an Inventory of all estate assets, paying any bills and claims against the estate, making distribution to beneficiaries, preparation of a final accounting, and the preparation of any necessary tax returns.

Once the estate has been opened and a Personal Representative has been appointed, it is necessary to publish a Notice of Administration, which notifies potential creditors of the administration of the estate. Creditors then have three (3) months from the date of first publication within which to file a claim against the estate. Once this three (3) month period expires, the claims which have been filed with the Clerk of the Circuit Court, if any, are forwarded to the Personal Representative for review. If the Personal Representative objects to any of the claims, a formal objection must be filed with the court on or before the expiration of four (4) months from the date of the first publication of the Notice of Administration. If there is no objection, then the claims are paid and a Satisfaction of Claim form is obtained from each claimant.

During the three (3) month claims period, other matters require the attention of the Personal Representative. These include, but are not limited to, the preparation of the Preliminary Notice and Report which is forwarded to the Florida Department of Revenue if the estate assets exceed $675,000.00 (for the year 2000); service of Notice of Administration on all interested parties; obtaining appraisals of assets; forwarding of copies of the Inventory on all residual beneficiaries, and a determination as to what tax returns will need to be prepared and filed.

Once the three (3) month claims period expires and the claims have been paid, the Personal Representative may begin to close the estate. This involves preparing a Final Accounting, Petition for Discharge, and serving notice thereof on all residual beneficiaries. If no objections to the Final Accounting, Petition for Discharge, or the proposed plan of distribution are filed with the court, then the estate may make distribution pursuant to said plan.

A Formal Administration in which a Federal Estate Tax Return will be filed with the IRS may require as long as two years before completion. A Formal Administration in which a Federal Estate Tax Return will not be filed typically will be completed between six months to one year from the opening of the estate.

Legal fees for a Formal Estate Administration are typically three percent (3%) of the probate assets (i.e. if the probate assets are $100,000.00, legal fees would be $3,000.00). Extraordinary legal services which may be required are billed in addition thereto. (extraordinary services include such items as a will contest, or other litigation, tax audit, tax return preparation, sale of real estate, determination of homestead, determination of beneficiaries, etc.) The Personal Representative is also entitled to a fee of three percent (3%) of the probate assets.

The costs associated with a Formal Estate Administration in Pinellas County, Florida, total approximately $500.00, and include Court filing fee ($170.50); fiduciary bond ($100.00+); publication of Notice of Administration ($75.00); certified copies, photocopies, postage and long distance telephone calls.

At your first appointment to discuss the facts of your case with an attorney to determine your options and an estimate of the fees and costs involved, you should bring a short form death certificate for the decedent, the original will of the decedent, if any; and copies of documents relating to the decedent's assets (i.e. deeds, bank statements, statements from other investment corporations, or financial institutions, stocks, bonds, certificates of title, etc.).

This is a brief overview of Florida estate procedures, which I hope will help to give you a better idea of what is involved with an estate administration. The above information is intended only as a guide and you should discuss the particular facts of your case with an attorney.