Overview of Florida’s Probate Process

Tue 01st Feb, 2022 Estate Planning

What Is the Probate Process?

Probate is the court-supervised process of administering a decedent’s assets. The probate process is governed by Florida law and ensures the orderly transfer of assets from the decedent to the beneficiaries of the decedent’s estate.  A personal representative is appointed by the probate court to take charge of the probate process by identifying, gathering, and securing the estate assets.  If the decedent left behind a valid Last Will and Testament, the probate process involves the orderly payment of valid creditors of the estate, taxes, and estate expenses followed by the distribution of the decedent’s remaining assets in accordance with the decedent’s Will.  If the decedent did not leave behind a valid Will, the probate process similarly involves the payment of valid creditors, taxes, and expenses followed by distribution of the remaining assets to the decedent’s heirs in accordance with Florida’s intestacy statute.

When and How Does the Probate Process Begin?

Within ten days of learning of the death of an individual, a Floridian in possession of the individual’s originally signed Last Will and Testament must deposit the Will with the Clerk of the Court.  If there are assets titled solely in the name of the decedent, then probate will be necessary in order to transfer those assets to the decedent’s heirs. 

The probate process begins by filing the appropriate probate petition with the Clerk of Court in the county where the decedent resided.  This petition will ask the court to admit the decedent’s Will to probate and to appoint the individual named in the Will as Personal Representative of the decedent’s estate.   If the decedent instead died without a valid Will, then the process is very similar: the appropriate probate petition is filed asking the court to appoint a Personal Representative of the estate.

Under Florida law, a Personal Representative is generally required to be represented by an attorney.  The only exception to this requirement is if the Personal Representative is also the only interested person in the estate (i.e., the Personal Representative is also the only beneficiary of the estate).

Are All Assets Subject to Probate Under Florida Law?

On occasion, some or all of a decedent’s assets may be transferred to a new owner directly and without the need for probate.  Examples of “non-probate” assets include:

  1. Assets owned jointly by the decedent and one or more individuals (e.g., a jointly-owned bank account);
  2. Assets with a beneficiary designation, such as a “POD” (Payable on Death) or “TOD” (Transfer on Death) designation (e.g., retirement accounts and life insurance); and
  3. Assets owned by a revocable trust.

Probate Assets

Assets owned individually by a decedent or in a co-ownership structure lacking a provision for automatic succession of ownership are subject to the probate process.  Examples of probate assets include:

  • A bank or investment account in the sole name of the decedent;
  • Retirement accounts that do not have a valid beneficiary designation;
  • Life insurance benefits payable to the estate;
  • Real estate titled in the sole name of the decedent;
  • Real estate titled in the name of the decedent and one or more individuals as “tenants in common;” and
  • Tangible personal property.

Types of Probate Proceedings

In Florida, there are several different types of probate proceedings. The four major probate types are summarized below:

  1. Formal Administration

A formal administration is the most commonly encountered form of probate.  With a formal administration, the court appoints a Personal Representative to oversee the administration of the decedent’s estate.  The length of a formal administration will vary depending on the amount and complexity of assets and number of beneficiaries involved.   

  1. Summary Administration

If the assets of an estate do not exceed $75,000 in total value, then a “summary administration” may be an alternative to a formal administration.  A summary administration is an expedited and simplified probate procedure that omits many of the filing and notice requirements of a formal administration.  The summary administration form is frequently used where the only asset of the estate is the decedent’s home.  A summary administration may also be used where the decedent has been dead for more than two years regardless of the value of the estate assets.

  1. Ancillary Administration

Where a non-resident of Florida dies owning real estate in Florida, the “ancillary administration” process can be used to transfer ownership of the Florida real estate to the beneficiaries of the non-resident’s estate.  In many cases, an ancillary administration is performed in conjunction with a probate in the home state of the non-resident.

  1. Disposition without Administration

“Disposition without Administration” is an informal probate procedure that allows the individual who paid the funeral expenses and/or last medical bills of the decedent to seek repayment from the decedent’s personal property.  This probate procedure is only available under very specific circumstances.  It is commonly utilized where the decedent only left behind a small bank account and a close friend or family member paid the funeral expenses of the decedent.  In that situation, a Disposition without Administration may permit that friend or family member to seek reimbursement of those expenses from the decedent’s bank account.