Probate Settlement

Probate is the process by which an estate is settled within the jurisdiction of a court. There are generally three types of probate which are available under Florida law: (1) Disposition without administration (2) Summary Administration; and (3) Formal Administration. The type of administration available to an estate depends upon many factors, and only an experienced probate attorney can properly advise you on what type of estate settlement procedure is appropriate to your particular situation. These factors include, but are not limited to:

1. The amount and nature of the assets of the estate.

2. The amount and nature of the debts of the estate.

3. The need or advisability to have an actual court appointed personal representative

Notwithstanding the need for a court appointed personal representative (executor), or the need or desire to deal with creditor claims, both of which are discussed below, an estate with less than seventy five thousand dollars of countable assets may qualify for a Summary Administration, and estates in excess of seventy five thousand dollars of countable assets will be required to utilize a formal probate administration. There are exemptions to these thresholds. For example, the value of the decedent’s Homestead property passing to children (or other “protected” heirs under Florida law) is generally exempt from creditor claims and can be excluded from the valuation when determining whether an estate will qualify for a summary administration. Additional property can also be found as exempt from creditor claims as well as from being included when it comes time to deterring the type of administration to be utilized under Florida law and this is dependant upon the type of property, its use, and the identity of the heir or beneficiary to whom it is passing. We can advise you on what types of property can be found exempt, and assist you in obtaining court orders confirming those exemptions.

The amount and nature of the debts of the estate are the second consideration. A formal probate administration offers the estate the ability to publish a notice to creditors and shorten the window during such creditors can file claims against the estate. Regardless of the size of the estate, if the estate has a substantial amount of debt, or the amount of debt is unknown, a formal administration may be advisable as it provides the personal representative with a forum through which uncertain debts can be disputed, forcing the creditors to prove the validity of their claims, and eliminating the claims of unknown creditors or those which are not reasonably ascertainable. If creditor claims are a concern, a formal administration must be seriously considered.

The naming of a personal representative or executor under a will (if a will exists) is an expression of the will maker’s preferences and is not an actual court appointment. The court document which appoints the personal representative is referred to as his or her “Letters of Administration” (or Letters Testamentary in other states) and can only be obtained through a formal probate proceeding, regardless of the size of the estate. If you are dealing with anything that requires a court appointment, such as pending litigation, creditor disputes, wrongful death actions, or difficult asset holders, you need a Formal Probate Administration. Likewise, if you need to make certain elections for tax purposes, claim elective share rights for a surviving spouse, close on a pending real estate contract, or any number of other situations which may require the appointment of a personal representative, you will need a formal administration.

Because of the complexities of probate, and the need to determine what type of administration is best suited for your particular situation, it is important to consult with an experienced estate attorney to determine the best course of action.

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