Florida’s Two Kinds of Probate

  • Posted by Bruce McDonald
  • January 16, 2018
  • (0) Comments

Probate is a court process, which varies from state to state. People use it to transfer ownership of assets (land, houses, stocks, money) from people who died (decedents) to the people who under the law inherited those assets (heirs or beneficiaries). Sounds simple?

Sadly, it often is not. In Florida there are two very different kinds of probate procedures, and deciding which one to use is the first big decision for the heirs or potential executors to make. 

The probate process similar to what all other states have is called “formal administration.” In it an executor (called personal representative) is appointed by the probate judge, and that person has the legal power to get information about the decedent’s assets and debts, collect the assets to the right people. It takes a minimum of five months from start to finish, often longer.

The other probate process, unique to Florida, is called “summary administration.” Here “summary” does not mean “total” or “wrap up.” It means “quick, skipping some steps,” as in “summary execution” (but less painful). It is faster and less expensive than a formal estate, and a good choice when it fits. In most counties it takes only a few weeks to get the summary administration order.

When does it fit? One common use is for vacant lots in Florida when the deceased owner lived outside Florida. It also fits if the owner lived in Florida and formal probate is not needed due to the estate’s small size. That’s because a summary administration can handle up to $75,000 in assets.  For non-residents that means assets just in Florida. So, even a very large estate outside Florida can use the summary probate if the Florida property is less than $75,000.

For Florida residents the $75,000 limit applies to assets located anywhere.

This is a good time to explain that the $75,000 limit in a summary estate only applies to assets which are actually “probate assets.” That would not include assets owned by the decedent jointly with right of survivorship, or owned with a designation of beneficiary to “pay on death.” Those assets do not require any order of the probate court to be transferred and do not count toward the summary estate $75,000 limit.

There are estates which qualify for summary administration but which should not use it. No executor is named in a summary estate, and some estates need an executor to sell the Florida asset. For example, sometimes the estate must sell an asset in order to pay the expenses of an estate, or because an heir is a minor and cannot sell his or her portion.

There are few other rare situations in which an executor must be named, such as when the estate has a wrongful death claim to pursue, or an ancillary administration is needed in another state.

Conclusion: if a summary administration works satisfactorily to transfer title to an heir or a beneficiary, clients usually choose it.