Posted by Bishop L. Toups | In Estate Planning
A Summary Administration probate in Florida is a phenomenal way of cutting down on the expensive cost and time of a typical, Formal Administration probate. A Summary Administration can be used when the decedent has been deceased for more than two years or when the estate is less than $75,000. A Summary Administration is typically many thousands of dollar less than a Formal Administration, and a Summary Administration usually only takes one to two months. A Formal Administration can easily take a year or longer.
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The initial step in opening a Summary Administration is the drafting and filing of the Petition for Summary Administration. The Petition for Summary Administration is the most essential document filed in the Summary Administration because the majority of the information the Court needs to enter a final order distributing the funds is contained within the Petition for Summary Administration.
The Petition for Summary Administration can be filed by any estate beneficiary or person nominated as a personal representative in the Decedent’s Last Will and Testament. The Petition can be filed at any time during the administration of the estate. The Petition contains some of the following information:
Caution: the Petition for Summary Administration must list the assets in detail. For example, a bank account should be listed as: Bank of America Checking Account Ending in #2019, $200. If you do not have the details for the assets, like the amount or type of account, then you’re likely not going to be able to do a Summary Administration. Make sure to dig through the Decedent’s mail and emails to see if you can find statements showing the asset information.
Here’s an example of a Petition for Summary Administration in Florida:
PETITION FOR SUMMARY ADMINISTRATION
(testate nonresident decedent – single petitioner)
Petitioner, Samantha Lesnar, alleges:
|YEAR OF BIRTH (if Minor)
|123 Fake St.Sarasota, FL 34232
|Homestead real property located at 123 Fake St., Sarasota, FL 34232
|Bank of America Checking Account Ending in #1234
Petitioner acknowledges that any known or reasonably ascertainable creditor who did not receive timely notice of this petition and for whom provision for payment was not made may enforce a timely claim and, if the creditor prevails, shall be awarded reasonable attorney’s fees as an element of costs against those who joined in the petition.
|Asset, Share or Amount
Petitioner waives notice of hearing on this petition and requests that the decedent’s last will be admitted to probate and an order of summary administration be entered directing distribution of the assets in the estate in accordance with the schedule set forth in paragraph 11 of this petition.
Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.
Signed on this day of ______________, 2023.
Samantha Lesnar, Petitioner
Bishop L. Toups
Attorney for Samantha Lesnar
Florida Bar Number: 120525
249 Nokomis Ave. S.
Venice, FL 34285
Telephone: (941) 882-0731
If the Decedent had a Last Will and Testament, the Petitioner must prove that the Will is valid. Most Wills drafted here in Florida are self-proving, meaning that the Will is automatically treated as valid by the court without any further steps to try and prove the Will. Many out of state Wills are not self-proving and will require the Petitioner to prove the Will either through an affidavit signed by a witness or an oath of someone who had personal knowledge of the Will and that the Will is the decedent’s Will.
Here’s an example of what a Self-Proving Will looks like here in Florida:
|STATE OF FLORIDA
|COUNTY OF _______________
I, _______________, declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will.
We, _______________________________ and _______________________________, have been sworn by the officer signing below, and declare to that officer on our oaths that the Testatrix declared the instrument to be the Testatrix’s will and signed it in our presence and that we each signed the instrument as a witness in the presence of the Testatrix and of each other.
_____(Witness 1 Signature Here)_____
_____(Witness 2 Signature Here)_____
Acknowledged and subscribed before me by means of ☐ physical presence or ☐ online notarization by the Testatrix, _______________, who ☐ is personally known to me or ☐ has produced ____________________________ (type of identification) as identification, and sworn to and subscribed before me by each of the following witnesses: ________________________________________, who ☐ is personally known to me or ☐ has produced ____________________________ (type of identification) as identification, by means of ☐ physical presence or ☐ online notarization; and ________________________________________, who ☐ is personally known to me or ☐ has produced ____________________________ (type of identification) as identification, by means of ☐ physical presence or ☐ online notarization. Subscribed by me in the presence of the Testatrix and the subscribing witnesses, by the means specified herein, all on January ______________, 2023.
______(Notary Public Signature Here)______
A Summary Administration is really for small estates that do not have any creditors, and for estates that are less than $75,000. If the decedent has existing creditors or is likely to have creditors, then the Summary Administration will likely not be the best probate option. However, suppose the creditors are known and the amounts owed are known. In that case, you can either pay the creditor claims before filing the Summary Administration, or you can provide for payment of the creditor claim within the Petition for Summary Administration.
One common issue during a Summary Administration is when an unknown creditor files a claim against the Estate after the Summary Administration is opened. If this happens and there are sufficient assets to pay the creditor, then the Petition for Summary Administration must be amended to provide for payment for the creditor claim. Or the creditor claim needs to be paid by the beneficiaries directly so the creditor will release its claim.
Example: Delilah passed away with only a bank account worth $50,000 solely in her name. Her beneficiaries did not expect any creditor claims and filed a Summary Administration Probate. As soon as the Summary Administration probate was opened, a creditor filed a claim on behalf of a hospital for an ambulance ride for $1,200 when Delilah was rushed to the emergency room before she passed.
Result: The bank account is not an exempt asset for creditor claims here in Florida. Her beneficiaries will have to pay for the $1,200 creditor bill either out of pocket or they’ll have to amend the Petition for Summary Administration to include a payment of the $1,200 creditor bill.
If the only asset in the Summary Administration is protected homestead and the homestead is transferred to qualified heirs, then a Summary Administration can be used even when there are creditors. This is because the homestead is given a value of $0 in Florida Probate since it is automatically exempt from the vast majority of creditor claims.
Example: Jorge died with a homestead worth 1.5 million dollars in Sarasota, FL. Jorge was involved in a major accident before he died, where he was at fault and severely injured another driver. Jorge had a judgment against him from the car accident worth $750,000. Jorge’s sole beneficiary was his daughter, Delilah.
Result: Delilah can open a Summary Administration since Jorge’s property was protected homestead and is his only probate asset. Jorge’s creditors will be unable to collect on the $750,000 because the only probate asset is protected homestead and all of Jorge’s beneficiaries are qualified heirs.
Caution: Any time there is a large creditor or a potential large creditor, we highly recommend you consult with a Probate Attorney pro here in FL before moving forward with the probate. There are a few options to overcome large creditor claims, which should be discussed before the Probate is filed.
Once the Petition for Summary Administration has been filed, the Last Will and Testament has been proved (if there is a Will), and all creditor claims have been dealt with, the Petitioner can petition the Court to file a final Order of Summary Administration. The Order of Summary Administration lists all of the assets, the beneficiaries, and how the assets are to be distributed based on the Decedent’s Will. If there was no Will, the assets will be distributed based on the intestacy laws of Florida.
Once the Judge signs the Order of Summary Administration, the probate is closed. The Petitioner or the beneficiaries can take this order to all the financial institutions to have the assets transferred. The financial institutions will transfer the funds to the beneficiaries based on the court order. Some out-of-state institutions might give you a hard time since the Order of Summary Administration will likely look different than their small estate affidavit. If you receive pushback, ask that they send the Order to their legal team for review.
Tip: If there’s protected homestead within the Summary Administration, it is vital that you also file a Petition to Determine Homestead and an Order to Determine Homestead. The Petition and Order to Determine Homestead protects the decedent’s homestead from most creditor claims. Consult with a Probate Attorney pro so you do not mess up the Homestead creditor protections.
Here’s an example of what an Order of Summary Administration looks like:
ORDER OF SUMMARY ADMINISTRATION
On the petition of Samantha Lesnar for summary administration of the estate of Brock Lesnar, deceased, the court finding that the decedent died on September 13, 2021, that all interested persons have been served proper notice of the petition and hearing or have waived notice thereof; that the material allegations of the petition are true; that the will dated December 1, 2020, has been admitted to probate by order of this court as and for the last will of the decedent; and that the decedent’s estate qualifies for summary administration and an Order of Summary Administration should be entered, it is
|SHARE or AMOUNT
|123 Fake St.Sarasota, FL 34285
|SHARE or AMOUNT
|123 Fake St.Sarasota, FL 34285
ORDERED on _________________________, 2022.
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