Probate

Probate is the process contained in the Florida Statutes by which property passes to beneficiaries either as provided in an individual’s will or as provided by statute if there is no will. There are three types of probate in the State of Florida.

What are the types of Probate in the State of Florida:

  • Summary Administration: For estates that the entire gross value does not exceed $75,000, less the value of property exempt from the claims of creditors, for example a homestead; OR when a decedent has been dead for more than 2 years.
  • Family Administration: For estates whose gross value is less than $60,000 AND consists of only personal property (real property may exist if creditors claims are barred, for example if it is homestead) AND the beneficiaries of the Will are a spouse or lineal heirs;
  • Formal Administration: Required for estates whose gross value exceeds $75,000 (excluding exempt property), and sometimes necessary in smaller estates.
  • Ancillary Probate: The name for probate proceedings where the decedent was a resident of one state but owned real property in another. There will be a probate in every state where an individual owns real estate. Ancillary probate only applies to real estate.

What are the general problems with probate:

  • Expensive: As a general rule most probates run between 3% and 5% for attorney’s fees in addition to court and other costs.
  • Time Consuming: Formal administration probates generally last between 6 months and 2 years. The average formal administration probate lasts between 11 and 13 months.
  • Emotional Strain on Family: Until the probate is concluded, your family members will be involved in the probate process which is emotionally draining.
  • Other Factors: There are numerous other factors that arise in the context of a particular situation in your family which may affect the probate process.

General Information Regarding Probate:

  • ALL ESTATES ARE PROBATED UNLESS ALL OF A DECEDENT’S ASSETS ARE IN A TRUST OR THERE IS A JOINT OWNER OF THE PROPERTY INVOLVED: Therefore, in most married people’s situation, if all property is jointly held there will be no probate on the first spouse’s death. This is not due to the first spouse’s will, but because the surviving spouse is a joint owner of all the property involved. On the surviving spouse’s death, there will be a probate if there is no new joint owner on the assets or if no Living Trust is in place.
  • Self-Proof Wills: Florida statutes provide for self-proof of wills that enables a will to be admitted to probate without locating the witnesses to the will, who may be unavailable at the time an individual dies. Out-of-state wills may be valid in Florida if there are 2 witnesses and a Notary, however, most out-of-state wills do not conform to Florida’s requirements for self-proving wills.
  • Separate Writing: Florida Statutes allow an individual to make a list of tangible property (eg. household items) to be given to a specific individual. You cannot give away money or property used in a business through a separate writing. No witnesses or Notary is needed for a separate writing; the document must be signed and dated and be referenced in the will.