Probate for Small FL Estates

Courthouse for estate probate

In Florida, full probate is not required for "small" estates, enabling executors to save considerable effort and cost.

Disposition without Administration

If a Florida estate contains very little that would have to go through probate, you can request that the court allow the estate to be settled without any probate administration at all (see FL Statutes § 735.301).

Requirements

To use this approach, an estate can only contain:

  • Section 732.402 exempt property (see below)
  • Other assets exempt from creditor claims, such as an official homestead, life insurance payable to a named beneficiary, IRAs and 401Ks, etc. (see FL Statutes § 222)
  • Non-exempt assets that do not exceed funeral expenses and reasonable and necessary medical expenses for the last 60 days of life

Petition

Each county has its own slight variances on the requirements and its own forms: simply request an order for Disposition without Administration from the FL Circuit Court that has jurisdiction over the estate.

You will need to attach:

  • Any mandatory county checklist (see Broward County checklist for example)
  • Certified copy of the death certificate
  • Copy of the will (if any)
  • List of assets and debts

Grant

Once the court grants your request, you may collect and distribute estate property without further court interaction.

Summary Administration

A summary administration is a bit more work, but it's still much simpler than a full probate process (see FL Statutes §§ 735.201-2063).

Requirements

A Florida estate can qualify for summary administration if:

  • its net value is < $75,000,
  • or >2 years have passed since the decedent's death

When calculating net estate value,

  • Add gross asset values and subtract debts
  • Exclude assets that would not be subject to probate in any case, such as 401Ks with named beneficiaries, life insurance policies, community property with right of survivorship, etc. (see Standard Probate Exclusions).
  • Exclude any property protected as a homestead
  • Exclude any property protected by a 732.402 exemption (see below)

Regardless of estate value, you can still apply for summary administration if no official probate has begun and more than 2 years have passed since the death. After 2 years, all debts have expired, so presumably the situation will be relatively simple (and if it isn't, your request will not be granted).

Petition

A person nominated as executor in the will, or any heir, can file a petition for summary administration if the above requirements have been met.

The petition must be signed and verified by any surviving spouse, and you should attach a copy of the will (if any), a certified copy of the death certificate, a list of known assets and debts, and a copy of your ID.

Formal notice of the petition must be served on any heir who hasn't signed the petition, and the petition must include the signature of any heir who would not receive the full amount specified in the will.

File the petition with the Circuit Court that has jurisdiction over the estate, and include a copy of the will, if any, with the petition.

Creditor Notification

Once you have filed a petition, you must make a diligent search for any known or reasonably known creditors and make provisions for paying those creditors from estate assets.

You must serve formal notice of your petition to those creditors, giving them 3 months to make any objections known to the court. See Finding Debts for more details, and note that all of this is moot once 2 years pass from the decedent's death (unless the creditor has already initiated court proceedings by then).

Grant

After the creditor notice period has expired, you should update the list of estate assets and debts you originally submitted to include any new information, along with a plan for satisfying all known debts.

Once the court grants your petition, the assets are legally transferred to the heirs and creditors in accordance with your submitted plan.

Section 732.402 Exempt Property

Both methods of bypassing standard probate, Disposition without Administration and Summary Administration, reference Section 732.402 exempt property.

If the decedent was a Florida resident, a surviving spouse or the decedent's children (if no surviving spouse exists) are entitled to protect some basic property:

  • Household furniture, furnishings, and appliances worth up to $20K
  • Up to 2 personal vehicles
  • Any 529 college savings plans
  • Teacher and school administrator death benefits

By filing a petition for determination of exempt property, you can request that this basic property be protected from estate creditors, and excluded when determining overall estate size.

See FL Statutes § 732.402.

No Affidavit of Collection

In many states, small estates can use an Affidavit of Collection or Small Estate Affidavit to obtain possession of estate property without court involvement. Since many people ask about this, we explicitly note that Florida does not support such a process; you must go through the courts one way or another.

See also General Probate.

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