Statistically, most probate cases in Florida are formally administered, as formal administration is the state’s traditional form of probate. This type of administration requires the heirs to petition a court to open the estate and appoint a personal representative to execute the last will. Keep reading to find out how Jurado & Associates, P.A. can guide you through a formal administration process in Florida.
What Is Formal Administration in Florida?
When someone dies in Florida, his/her estate will probably need to go through probate before the assets can be distributed to the beneficiaries. As its name suggests, formal administration is the type of probate required in most cases when a Florida resident passes away. In essence, formal administration is required when the decedent’s assets are worth more than $75,000 or the decedent has been dead for less than two years.
Additionally, cases that may require formal administration include situations wherein:
- One or more of the decedent’s legal heirs do not agree to court procedures
- Part of the decedent’s estate is still unknown
- The decedent died owing money to creditors or left unpaid bills
In case the decedent was not a resident in Florida, then the process will require an ancillary administration. Fortunately, we can also assist you. Read our guide about ancillary administration here for further help.
When Is Formal Administration Probate Necessary?
There are two main types of probate proceedings in Florida – formal administration and summary administration. Depending on the case, one may not qualify for summary administration, which is known as a more expedited and significantly cheaper process.
Essentially, Florida probate is necessary when someone dies owning assets in their name only and without a beneficiary designation. Most probably, the estate of a Florida resident who dies owning assets worth more than $75,000 will go through probate, considering there are no estate planning tools in place to avoid formal administration.
In this context, all assets titled solely in the decedent’s name must pass through probate, including:
- Real estate
- Bank accounts without a beneficiary
- Bank accounts titled to a beneficiary that already passed away
- Interest in business titled to the decedent’s name only (e.g., corporate shares)
It is worth noting that cases that require the sale of a decedent’s real estate will probably require formal administration. Although this requirement may change from county to county, if real estate is going to be sold through a probate administration in Miami-Dade County, it will certainly require formal administration.
What Are the Main Differences between Formal Administration and Summary Administration?
A decedent’s estate may qualify for summary administration in Florida when:
- the decedent’s has passed away more than two years ago, or
- the total value of the decedent’s estate subject to probate is $75,000 or less
When compared to formal probate proceedings, the main advantage of summary administration is the shorter time frame, which usually lasts three to six months on average. Additionally, summary administration requires less documentation and formalities.
Nonetheless, nothing in life is perfect – neither is summary administration. Unlike during a formal administration, a personal representative will not be officially appointed by the court for summary administration. In such cases, requesting information about the decedent’s estate is a challenging task, as various institutions and financial entities are legally required to withhold this type of information if you are not a personal representative.
Accordingly, a summary administration will not provide Letters of Administration, the documents that will officially grant access and management rights to the decedent’s estate. In fact, it is complex to determine whether someone’s estate qualifies for summary or formal administration.
If you want to find out what type of probate applies to your case and ensure the best cost-benefit regardless of the circumstances, call Jurado & Associates, P.A. for a consultation at (305) 921-0976.
Do You Need to Appoint a Personal Representative for Formal Administration in Florida?
As provided by state law (Fla. Stat. §733), no formal administration may take place without the appointment of an eligible personal representative. The personal representative can be an individual or an eligible entity (e.g., trust company) subject to specific restrictions. To qualify as a personal representative to someone’s estate, an individual must either be a Florida resident, or a decedent’s close relative, such as a spouse, a sibling, adult children (regardless of residence).
If an individual is neither a Florida legal resident nor a close relative of the decedent, he/she cannot serve as a personal representative under state law. Plus, no individual younger than 18 years, convicted of a felony, or mentally/physically unable to perform the duties of a personal representative are not legally suitable to fulfill this role.
In Florida, the personal representative has a legal duty to administer the estate subject to probate according to Florida law and act only in the best interest of the estate’s beneficiaries.
In case the personal representative incurs mismanagement or irresponsibility, the person may be liable to the beneficiaries for any injuries they may suffer as a consequence. During formal administration, the duties and responsibilities of the personal representative include:
- Hire skilled professionals to help throughout the process (e.g., probate attorneys, accountants, appraisers, etc.)
- Identify and gather the decedent’s assets subject to probate
- Evaluate how much the decedent’s probate assets are worth
- Provide notice to creditors (in case the decedent has unsettled debt)
- Diligently search to locate “reasonably ascertainable” creditors and notify them the decedent has passed away
- Issue “Notice of Administration” whenever it is necessary
- Oppose unfeasible or improper claims against the decedent’s estate
- Defend against lawsuits brought by third parties claims against the decedent’s assets (if necessary)
- Negotiate and settle valid creditors’ claims to the decedent’s assets
- File tax returns and settle all the decedent’s tax liabilities
- Pay probate administering-related expenses
- Ensure the decedent’s surviving spouse and loved ones receive all statutory amounts due
- Distribute the decedent’s assets to its rightful beneficiaries
- Formally close the estate
Creditor Rights in Florida during Formal Administration Probate
Once the personal representative is appointed by the court, one of his/her initial responsibilities is to publish a Notice to Creditors using a newspaper published in the country wherein the estate is being formally administered.
Additionally, the personal representative must provide notice to all “known or readily ascertainable creditors” directly. Each creditor has a limited period to file claims against the decedent’s estate. Ultimately, the creditor’s claims are forever barred:
- If a creditor does not proceed to file a claim within three months from the date of the first publication of Notice to Creditors, or
- If a creditor does not proceed to file a claim within 30 days from direct service of a Notice to Creditors (whichever occurs later)
The Florida Probate Code also prohibits all claims filed more than two years after the decedent’s date of death.
It is worth noting that the personal representative is not personally liable to creditors for claims filed against the estate. Also, the decedent’s estate itself is only liable to satisfy creditors’ claims to the extent that the amount is sufficient to pay such claims.
Contact Us for Expert Legal Assistance During Formal Administration in Florida
At Jurado & Associates, P.A. we have a team of well-versed attorneys with hundreds of successful formal administration cases in their portfolios. No matter how complex it might look at first sight, our team will certainly tailor a strategy to solve your case as quickly as possible. Waste no time – call us today at (305) 921-0976 or email us at [email protected] for a consultation.