Probate Laws
Laws that govern the probate process can vary significantly from state to state. An often long and frustrating process – but an essential one – probate validates a person’s will, resolves any debts that were incurred and distributes any remaining property according to terms laid out in someone's will. Taking care of all these duties is known as estate administration.
Probate laws everywhere, regardless of state, serve a variety of important functions in estate administration, including:
Guiding the executor of the will on how to pay creditors and distribute assets
Requiring the notification of creditors and the publication of legal notices at the time of death
Establishing time constraints and other regulations
Evaluating the estate’s tax obligations
Presiding over administrative costs
The costly and time-consuming nature of probate motivates many people to make arrangements to keep their assets out of probate court. That allows property to go directly to named inheritors with little to no legal involvement. Even still, no estate can bypass probate entirely.
To improve the speed and efficiency of probate proceedings in U.S. courts, the Uniform Law Commission created the Uniform Probate Code (UPC), a standardized model for probate law. This one-size-fits-all set of guidelines is gaining traction in most states. In addition to improving the uniformity of probate laws across the United States, UPC aims to simplify the overall process of estate administration.
Florida Probate Laws
The state of Florida has two types of probate administration: formal administration and summary administration. Alternatively, some situations qualify for special proceedings not supervised by the probate court, a process called disposition of personal property without administration.
Formal Administration
To pass along ownership of any property, a deceased person’s will must be validated in circuit court. If there is no will, or if the will found to be invalid, Florida law determines who inherits any property that remains after court fees, attorney fees and all outstanding debts are paid.
A circuit court judge oversees formal probate proceedings. The judge will rule on the validity of the will. If a valid will is absent, the judge will review case information to determine rightful inheritors.
If the will names a personal representative to handle estate administration, the judge also determines whether the proposed administrator is qualified for the role. If not – or if there is no will – the court will appoint a representative.
An appointed representative can be a person, a trust company or a bank. The judge’s first choice is usually a surviving spouse, followed by a person or institution that the majority of the estate’s heirs agree upon.
Florida probate law is unique from other states in one regard. Florida mandates that the personal representative must hire an attorney to oversee the probate process unless the personal representative is the sole interested person (i.e. when there are no other heirs or creditors interested in the estate). Once a judge deems a will valid and approves a personal representative, final administration of the estate can begin. This process is guided by Florida probate law and is supervised by the court.
Summary Administration
Summary administration is a probate shortcut for small estates. To go through this shortcut, the case must meet one of two conditions:
The value of the estate subject to probate does not exceed $75,000 and no creditors object.
The death occurred more than two years ago and there was no prior probate administration.
Step by step: In the first step of summary administration, the executor of the will (or anyone else who inherits the property) files a document known as a Petition for Summary Administration. The surviving spouse and all beneficiaries must sign and verify the petition. If a beneficiary does not sign, the petitioner must serve that person with a notice indicating that a petition was filed.
What the petition does: The petition, which declares that the estate qualifies for summary administration, lists the deceased person’s assets and associated value, as well as who will inherit each asset. If approved, the petition lets the court bypass the step of appointing a personal representative for the estate, which simplifies probate and lessens its cost.
Disposition Without Administration
Introduced by the Uniform Probate Code, the option of Disposition Without Administration reduces the court’s supervision over how personal representatives manage the decedent's estate. This has two benefits:
It significantly speeds up and simplifies the process.
It allows the person who paid for the deceased person’s final expenses to be reimbursed with assets from the estate. These expenses can include medical expenses and funeral costs. But to qualify for this option, the estate assets subject to probate must meet strict requirements.
Disposition without administration should only be pursued when there are no disagreement among heirs. Should a dispute arise or an interested party object, a resolution will be reached through formal court administration.
The Uniform Probate Code
One of the most frustrating aspects of probate is that each state has its own rules and regulations for the process. For example, if a person owns property in two states and passes away, his or her personal representative has to deal with two probate courts. The proceedings can differ substantially from state to state, and most cases like this require two lawyers. Understandably, probate in multiple states can greatly compound the cost, time and hassle of estate administration.
To address this situation, as well as numerous other issues with probate, the Uniform Probate Code (UPC) was created. The goal of UPC is to modernize and standardize probate across the United States, with a focus on reducing the time and cost of proceedings. Seventeen states have enacted the UPC in its entirety, and the rest have adopted select parts.