In Florida, probate is often, but not always, necessary after someone dies. There are different ways to settle an estate in Florida, and you might find that probate is not needed at all, or that the estate qualifies for a simplified probate procedure that saves time and money. Here's an overview of Florida's probate and non-probate procedures, from the simplest and least expensive to the most complicated and costly.
Many or even all assets of the deceased person may be able to go to their new owner without any probate court involvement. The most common kinds of non-probate property are:
These types of property can avoid probate. If all of the deceased person's property falls into the categories listed above (for example, if the estate consists solely of living trust property and retirement accounts with named beneficiaries), you'll likely be able to avoid probate entirely. If there is other property in the estate, read on.
If you're planning your estate and want to learn more about common probate-avoidance techniques, see How to Avoid Probate.
In Florida, probate also may not be necessary if the estate consists of very little property. The estate can use a probate alternative called "disposition without administration" if:
(Fl. Stat. § 735.301.) In addition, if there's no will (in other words, the deceased person died intestate), the estate must also fulfill these requirements to qualify for disposition without administration:
(Fl. Stat. § 735.304.)
No property has to go through probate with this process. Instead, to request payment of what was left to you in the will or what you are entitled to by law, you file a form called "Disposition of Personal Property Without Administration," which is available from the clerk of the court and on many Florida circuit courts' websites. You list all of the property the deceased person owned and its value. There's a filing fee; call ahead or check the court's website to find out the exact cost.
You must attach a certified copy of the death certificate with your request. You must also file the will, if any, with the local circuit court. You may be required to provide additional documents, such as an itemized funeral bill, medical bills, documents related to the account from which you are seeking funds (such as a bank account, stock certificate or a document showing the nursing home is holding funds in escrow).
"Summary administration" is a probate shortcut that can be used by many Florida estates. It's an option if either:
(Fl. Stat. § 735.201.)
To start this process, the person who was nominated in the will to be executor, or anyone who inherits property, files a document called a Petition for Summary Administration. The surviving spouse, if any, must sign and verify the petition. If any beneficiary doesn't sign the petition, you must formally deliver (serve) that person with notice that you have filed the petition. (.)
In the petition, you state that the estate qualifies for summary administration, list the deceased person's assets and their value, and state who inherits which assets.
The court doesn't appoint a personal representative (executor or administrator) for the estate. Instead, the court, if it determines that the estate qualifies for summary administration, issues an order, releasing the property to the people who inherit it. You might use this court order to show a bank, for example, that you are the rightful inheritor of the funds in an account it holds.
If the estate doesn't qualify for a simpler method of administration, formal probate may be necessary.
Florida law requires that anyone who has possession of a will must file it with the local circuit court within 10 days of learning of the death. This deadline is unusually short. While this requirement is technically part of Florida's probate rules, in practice many people end up filing past the 10-day deadline without consequences.
Probate proceedings begin when the executor nominated in the will, or another interested party, asks the circuit court to be appointed as personal representative of the estate. Generally, the probate proceeding takes place in the county where the deceased person was living at the time of death. Beneficiaries and heirs (people who would inherit in the absence of a valid will) are given notice, so they have a chance to object.
The court issues a document called Letters of Administration, which gives the personal representative authority to settle the estate. If there's a will, it must be filed with the court and proven valid. This may be done by having the witnesses to the will give statements, under oath, about its validity. Or, if the will is "self-proving," it's enough to submit the document itself. Under Florida law, a will is self-proving if the witnesses, when they watched the will-maker sign the will, signed a statement in front of a notary public.
Under the court's supervision, the personal representative gathers and inventories assets, pays debts and taxes, and (eventually) distributes what's left to the people who inherit it. The personal representative must submit a final accounting to the court, showing what the estate contained, how the assets have been managed, and the plan for distributing them to beneficiaries. Anyone who objects to the accounting can object in court.
After everything has been distributed, the personal representative files evidence (receipts) with the court and asks that the estate be closed. The court issues an order closing the estate and relieving the personal representative of further responsibilities.
Typically, the whole process takes six months to a year. However, each case is an individual situation, and some probates may take far longer. If someone challenges the validity of the will, for example, the circumstances can be very different, and timeline much longer, than the average case.
For more information on the probate process and the executor's responsibilities, see Nolo's book, The Executor's Guide: Settling a Loved One's Estate or Trust, by Mary Randolph.
Florida is one of the few states that sets out, in its statutes, lawyers' fees that are presumed to be reasonable for estates of a certain value. (Fla. Stat. Ann. § 733.6171.) The fee is based on the value of the assets that go through probate, plus any income they earn during the probate proceeding. The value of homestead property is not counted.
Here are the statutory fees:
|Value of the Estate||Lawyer's Fees|
|Up to $40,000:||$1,500|
|$40,000 to $70,000:||$2,250|
|$70,000 to $100,000:||$3,000|
|$100,000 to $1 million:||$3,000, plus 3% of the value over $100,000|
|$1 million to $3 million:||$3,000, plus 2.5% of the value over $1 million|
|$3 million to $5 million:||$3,000, plus 2% of the value above $3 million|
|$5 million to $10 million:||$3,000, plus 1.5% on the value above $5 million|
|More than $10 million:||$3,000, plus 1% of the value above $10 million|
These fees are only for "ordinary" services. Anything the lawyer does that isn't ordinary—for example, handling a will contest or giving tax advice—is presumed to justify a larger fee. If a lawyer follows the fee schedule, the fee may be almost unrelated to the amount of legal work done. It's the same amount of work to handle a $1 million brokerage account as it is to probate a $100,000 account—but under the statutory fee schedule, the bill for the million-dollar account would be ten times larger.
Florida attorneys aren't required to follow this fee schedule, and many acknowledge that it often leads to inflated attorney fees. Especially if the estate you're handling is greater than $100,000, be sure to find an attorney who will quote you a flat fee or work at an hourly rate.