LEONARD A. BARROW, JR.
© Law Office of Leonard A. Barrow, Jr.
The information contained in this web site is intended to convey general information about the law and other sources, which is subject to interpretation and change.
2418 Colonial Drive
Melbourne, FL 32901
Phone: (321) 725-0045
Fax: (321) 725-0078
What is Probate?
Probate in Florida is a court-administered process for identifying and gathering a decedent's probate assets, paying taxes, claims and expenses, and distributing assets to the beneficiaries.
Financial assets such as bank accounts, brokerage accounts, investments and other financial accounts which are titled solely in a decedent's name with no "transfer on death" (TOD) designation or right of survivorship designation.
Real Estate that is titled solely in a decedent's name or real estate that is held as "tenants in common" with another person must be probated.
A lawsuit brought on behalf of a deceased person's estate, such as a wrongful death claim filed by the relatives of a deceased person, must involve the probate process.
What are some Non-Probate Assets?
• Any bank accounts, investments or other financial assets held jointly with a right of survivorship;
• Any bank accounts, investments or other financial assets with a "transfer on death" (TOD) designation;
• Any life insurance policy, annuity or retirement account designated as payable to a specific beneficiary;
• Any real estate held jointly with rights of survivorship or held as Tenants by the Entirety.
What types of Probate are available in Florida?
Formal Administration: Required for estates involving more than $75,000 in probate assets. In a Formal Administration, a Will is admitted to probate, a Personal Representative is appointed, a Notice of Administration is sent to interested persons (surviving spouse, beneficiaries, etc.) and a Notice to Creditors is published to identify any unknown creditors. A Personal Representative receives "Letters of Administration" which is a Court Order that empowers the Personal Representative to administer the estate, receive the property of the Decedent, pay the debts of the Decedent as far as the assets of the estate will permit, pay any taxes due and make distribution of the decedent's assets to the beneficiaries.
Summary Administration: This is a shorter and less involved type of probate that can be used if the value of the probate assets is less than $75,000 or if the decedent has been dead for more than two years. Please note that the value of the decedent's Homestead property does not count against the $75,000 cap on Summary Administration. A Personal Representative is not appointed in a Summary Administration, but instead the Probate Court signs an "Order of Summary Administration" which transfers ownership of the decedent's assets directly into the names of the beneficiaries.
When is Ancillary Probate Necessary?
When a resident of another state passes away owning real estate in the State of Florida, a Florida probate action known as an "Ancillary Administration" is required in order to pass ownership of the Florida real estate over to the beneficiaries. A Florida Ancillary Administration is often filed at the same time that the probate action in the home state of the decedent is handled, however this is not a requirement. A Florida Ancillary Administration can be filed in Florida even if there was never a probate action filed in the decedent's state of residence.
The need for an Ancillary Administration is also true for a deceased Florida resident who owns real estate in another state. In such a case, an Ancillary Administration would need to be filed in the state where their property is located.
In most cases, Florida Ancillary Probate matters can be handled without undue expense or delay. If the Ancillary Probate matter is uncontested, the out-of-state client and/or Personal Representative does not need to travel to Florida. I have successfully resolved and concluded numerous Ancillary Probate matters throughout the State of Florida without courtroom time and without the need for in-court appearance.
What documents are necessary for Ancillary Administration in Florida?
If an Ancillary Probate Administration needs to be filed in Florida, and if there was a probate filed in the home state, then a transcript of the probate proceedings from the state of domicile is needed. "Certified" or "Exemplified" copies of the following documents from the transcript of the home state are needed, as follows:
1. The Petition for Probate (which asks for the appointment of the Executor, Administrator or Personal
Representative & also asks for the Will to be admitted to Probate);
2. Last Will & Testament;
3. Order Admitting Will to Probate;
4. Order Appointing the Executor (Administrator or Personal Representative);
5. Certificate of Death of the decedent.