What is Probate in Florida?

Probate is the legal process by which a decedent’s assets are identified and transferred to the decedent’s beneficiaries.  During the Florida probate process all assets that are subject to probate administration are inventoried and valued as of the date of the decedent’s death.  
A decedent’s assets include:

• Real property – land, including a home or business
• Personal property – cars, cash, jewelry, collectibles, antiques and other property

Certain assets, including life insurance policies, IRAs, and annuities, typically have a designated beneficiary. These assets are not subject to the probate process.  Additionally, property that is held in a trust, owned by spouses as “tenants by the entirety,” or is jointly owned with rights of survivorship by the decedent and another party is not a probated asset.

In addition to inventorying and appraising the property of the deceased, the Florida probate process is also used to identify and pay off all of the decedent’s debts, taxes and other obligations.  These debts and obligations must be satisfied before any remaining property can be distributed to the decedent’s beneficiaries.  If the decedent had a will, the will must also be proved as valid during the probate process.  In the event a will does not exist, or is found to be invalid, the probate process is used to transfer the decedent’s property to those individuals who are legally entitled to distribution according to Florida law.

How Does the Florida Probate Process Begin?

While any interested person can petition for probate administration, in most situations the person named in the will as the personal representative of the decedent will initiate the process by filing a Petition for Administration with the court along with the decedent’s will.  While Florida law generally refers to the person who represents the decedent’s estate as the “personal representative,” in other states that person is often known as the administrator or executor.

Banks, trust companies and other institutions legally authorized and qualified to operate in Florida are typically eligible to serve as a personal representative.  Additionally, Floridians are generally eligible to serve as the personal representative, but if the personal representative is the spouse, child, sibling, parent or other close relative of the deceased, he or she does not have to be a Florida resident in order to serve as the personal representative.  

In the event that the named personal representative is not able or willing to serve, the personal representative will typically be chosen by a majority in interest of the persons entitled to receive the decedent’s estate.  When an individual has died intestate, meaning that no will exists, the surviving spouse may serve as the personal representative.  If there is no surviving spouse, or if the spouse is unwilling or unable to serve, the personal representative will generally be selected by a majority in interest of the decedent’s heirs.

What Types of Probate Administration are Available?

In Florida, two primary types of probate administration are available:  summary administration and formal administration.  Both of these administrations involve a court-supervised process. A third type of administration known as the “Disposition of Personal Property Without Administration” is also available.  This is a non-court supervised proceeding which is only available in very limited circumstances.  

When the value of a decedent’s estate does not exceed $75,000 (less the value of any property exempt from the claims of creditors), or the decedent has been dead for more than two years, the estate will be eligible for summary administration in most instances.  The decedent’s personal representative or any beneficiary may file the petition for summary administration.  

When summary administration is not available, the estate will generally be probated through Florida’s formal probate process.  Formal administration is closely supervised by the courts and a number of steps must be met in order to complete the distribution of the decedent’s assets.