Frequently Asked Questions about Florida Estate Administration
Orlando, FL Estate Planning Law Firm
At Kane and Koltun, we are experienced in assisting our clients with the administration of estates and trusts. The information set forth below provides a brief background of the administration process.
When does the Administration Process begin?
Whenever a person dies, his or her estate needs to be collected, managed, and distributed. Estate administration involves gathering the assets of the estate, paying the decedent’s debts, and distributing the assets that remain in the estate. Florida law currently provides for what may be referred to as a “formal” administration of estates. There are also provisions for a “summary administration” of smaller estates (i.e. those estates in which the value of assets subject to administration is valued at $75,000 or less). A summary administration may also be available in those instances where a decedent has been dead for more than two years. Florida law also provides for an “ancillary administration” of estates of non-resident decedents who die leaving assets in this state.
Formal Administration vs. Summary Administration – What’s the difference?
A formal administration involves court (i.e. judicial) oversight of the probate administration. A probate proceeding of this type is commenced by the filing of a Petition for Administration, which requests the appointment of a personal representative. The personal representative is the individual charged with the responsibility to properly administer the estate. The personal representative will be required to file an oath with the probate court wherein he or she promises to faithfully administer the estate.
A summary administration also involves the filing of a petition. In contrast with a formal administration, there is no request for the appointment of a personal representative. Instead, the petition lists the decedent’s assets and the beneficiaries of the decedent’s estate. The person(s) signing the petition must make provision for the payment of any creditors to the extent that assets are available. If the documentation is properly filed, the probate court will sign an order directing the distribution of the decedent’s assets to the person(s) listed in the petition.
Where is an estate administered?
Florida law provides that the proper venue for the probate of an estate is in the county where the decedent was domiciled at the time of his or her death. In those instances where a decedent owns property (particularly real estate or tangible property, such as a car or boat) in another state, then the estate may need to be administered in Florida as well as the other state. In those instances, it is usually necessary to consult two attorneys, one in Florida and another in the state where the decedent owned real estate or tangible property.
Managing the Estate: The Appointment of a Personal Representative
The first task in a probate proceeding is appointing a responsible party to manage the estate. This person is usually called the personal representative. The personal representative may be an individual or a company, such as a bank. The personal representative may have been nominated by the decedent in the will. If there was no will, then Florida law sets forth a preference or priority list in determining who should be appointed. The surviving spouse, if any, is given first priority. If there is no surviving spouse or if the surviving spouse does not wish to serve, the next order of priority is the person selected by a majority in interest of the heirs. There may be more than one personal representative named.
Inventorying the Estate
After being appointed, the personal representative is expected to document all of the decedent’s assets. This documentation is often referred to as the inventory. The personal representative must also inform the decedent’s creditors that the decedent has died. If the decedent’s probate assets are sufficient to pay the creditors, the personal representative will pay them from the estate. If the probate assets are insufficient, the personal representative may need to obtain court approval to determine which creditors should be paid.
Distributing the Estate
If there are any assets left after the creditors have been paid, those assets are distributed according to the will. If there is no will, the decedent is said to have died intestate. Florida law sets forth rules governing the distribution of the assets of an intestate decedent. The personal representative will also file any necessary tax returns. If the estate is owed any money, the personal representative may need to bring a lawsuit in order to collect it. If the will is contested, or if there is any other dispute over how to distribute the estate assets, the personal representative may have to “defend” the will in a probate proceeding.
Petition for Discharge
When the personal representative of an estate has completed the administration of an estate, he or she may file a petition for discharge. The petition for discharge must contain a sworn statement that the personal representative has fully administered the estate by making payment, settlement, or other disposition of all claims and debts that were presented, and by paying or making provision for the payment of all taxes and expenses of administration. The personal representative must also affirm to the court that all required estate tax returns with the Internal Revenue Service and with the Department of Revenue of the State of Florida have been filed and must submit evidence to the court of satisfaction of this estate’s obligations for both federal and Florida estate taxes. (Please note that there are currently no estate taxes due to the State of Florida). If the probate court finds everything to be proper, then it will issue an order discharging the personal representative from further liability.