Probate and Trust Administration
Friday, October 2nd, 2009
Probate is the name of the legal procedures that determine the successors in ownership of money or property owned by a deceased person in his own name at the time he died. Florida probate determines ownership only of Florida real property owned by any decedent and tangible and intangible personal property owned by a decedent who was domiciled in Florida at the time of his death.
The personal representative for the decedent’s estate is appointed by the Circuit Court after petition and notice to any other persons entitled to preference. The person named in the decedent’s will is entitled to be appointed if qualified. If the decedent had no will or if the will did not appoint a qualified person, Florida Statutes set up the order of preference for appointment among relatives to be personal representative.
The decedent’s property must be gathered by the personal representative and sold to the extent necessary to pay creditors’ claims, any estate taxes, and the costs of administration. The creditors must file their claims within three months of publication of the notice of administration or, if the personal representative had knowledge of the debt, within 30 days after service of the notice of administration, if that period ends after expiration of the claim period. The creditors’ claims which must be paid are those allowed by the personal representative and those which are objected to by the personal representative, but proved in court. Those claims must be paid to the extent that the probate estate has assets to do so after payment of the costs of administration.
The personal representative has no power to sell homestead property of the decedent to pay claims or costs of administration unless the homestead has been validly devised to persons who are not within the class of potential heirs at law of the decedent. See Homestead Law.
Persons named in the decedent’s will to receive specific bequests are entitled to receive them if such property need not be used to pay those obligations.
Any money and property remaining after satisfaction of taxes, costs of administration, creditors’ claims, and specific bequests must be distributed to the residuary beneficiaries named in the will or, if no will, to the intestate heirs named in the Florida Statutes.
The types of proceedings, in order of simplicity, are:
a) Proceeding for an order establishing a non-Florida probate as a muniment of title for real property where a probate was completed in another state and the decedent who was domiciled there has been dead for more than two years;
b) Summary Administration where the decedent has been dead for two years (and the debts therefore barred) and all beneficiaries join in the petition and agree as to distribution;
c) Summary administration where there are no unpaid debts, all beneficiaries join in the petition and agree as to distribution, and the property subject to Florida probate has a value of less than $75,000;
d) Family Administration where the Gross Estate of the decedent (not just the property in the probate estate) has a value less than $60,000 and the only beneficiaries are the spouse, lineal descendant or lineal ascendants of a Florida domiciled decedent;
e) Formal Probate, which applies in all other situations, including notice to creditors and the determination of the debts of the deceased settlor and the costs of administration. Claims are enforceable against the assets of the settlor’s revocable trust. See Trusts.