Probate for Small FL Estates
In Florida, small estates can bypass probate via disposition without administration, or simplify it via summary administration.
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).
To use this approach, an estate can contain nothing besides:
- Exempt Personal Property
- An Exempt Homestead
- Other assets exempt from creditor claims, such as 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
To settle an estate without administration,
- Submit an Affidavit of Disposition of Personal Property without Administration to the court (see below)
- Once the court approves the form, you can use it to collect estate assets from their current custodians
- Settle the estate in the normal manner: resolve any estate obligations and distribute remaining assets to heirs
You can use the Affidavit of Disposition of Personal Property without Administration Form, or ask your local court if they have a preferred form.
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
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).
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 Exempt Personal Property
- Exclude any Exempt Homestead
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).
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.
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).
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.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any FL Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
In turn, estate debts have priority over most distributions, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
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.