Probate is a court controlled mechanism where the court transfers assets from someone who died (decedent) to the decedent’s beneficiaries. The beneficiaries are those listed in the decedent’s Will. When the decedent dies with a Will we refer to this as the decedent dying testate.
If the decedent died without a Will (intestate), then the decedent’s beneficiaries will be determined by the Florida Statutes. Usually, these will be the closest family members – spouse, children, etc. This means that without a Will your assets could pass to your crazy Uncle that you haven’t talked to in twenty years.
Assets that could pass through a decedent’s Will are personal property (your 2005 VW Bug), real estate, financial accounts, and even business interests (such as an LLC).
When do these assets pass through the Will? They pass through the decedent’s Will when the assets are titled solely in the decedent’s name. This often happens with real estate because there are limited options to have real estate avoid probate.
This means just having a Will – even though every person should have a Will — is often not a great way of setting up your estate plan.
A Will is a one-way ticket to probate
Probate in Florida is expensive, time-consuming, open to the public, and is often very stressful for your family and loved ones. Attorneys love it because we make a lot of money off probate (as you’ll see below).
Probate can be completely avoided with proper estate planning done by a competent estate planning attorney. Yes, this also means avoiding LegalZoom.
Proper estate planning – either by setting up a Trust, executing a Lady Bird Deed, or having your assets pass through beneficiary designation – allows your beneficiaries to receive assets without much cost or headache and avoids the courts altogether.
Different Types of Probate in Florida
The two most common types of probate in Florida are summary administration and formal administration.
In a summary administration, a petitioner petitions the court to probate the asset or assets of the decedent. A petitioner is much different than an executor/personal representative. The petitioner does not have any power granted to them by the court and are very limited in what they can and cannot do.
Summary administration is often the preferred method of probate in Florida because it is usually less expensive and much less time consuming than a formal administration. Summary administrations are used when probate assets total less than $75,000. There are some exceptions when assets are above $75,000 (e.g. homestead real property) or when the decedent has been deceased for more than two years.
A summary administration will take anywhere from one to four months – the length of a summary administration varies depending on whether there are any creditors (e.g. medical bills), how quickly the petitioner and beneficiaries sign documents, and how busy the court is.
A formal administration happens when there are more than $75,000 in probate assets or when it is necessary for there to be an executor/personal representative.
In a formal administrative an executor/personal representative is appointed to administer the decedent’s probate estate.
If the decedent died with a Will, then the executor/personal representative will most often be the person who was nominated to serve in the Will. If there is no Will, then the court will decide who will become the executor/personal representative based on the Florida Statutes.