Florida Probate for Small Estates - Summary Administration of Estate

Many Floridians don't realize that a family member or other interested person is allowed to settle an estate. It is a myth that an attorney must be involved in every estate. If an estate is small enough to qualify for the Summary Administration of Estate process a family member or interested party may be able to initiate and handle the paperwork pro se. In general, Summary Administration of Estate is appropriate if the value of the estate is less than $75,000 excluding exempt property. The summary administration process is also available if the decedent passed away more than two years prior to filing the Petition for Summary Administration. 

It seems that nothing in Florida that has to do with the courts is easy. Some states require only one single document called an Affidavit of Small Estate. But, in Florida a set of documents is almost always required. The probate court also expects the filer to submit proposed orders along with the petition. This rule differs from the regular rules of civil procedure which generally require that orders are not to be filed in the court record.

When a family member dies, the first step in settling the estate is to determine whether there is a will. Sometimes the family knows exactly where the will is, and other times it takes a search through the decedent's papers in order to locate it. Other times the will is in a safe deposit box. In Florida there is no requirement to file a will with the court until after someone dies. If there is a will, then the estate is considered "testate". If there is no will, the estate is considered "intestate".

The next step after determining whether there is a will or not, guides the whole process. If the person died with no will, then the rules of intestate succession apply. Florida Statute 732 lays out the exact order of inheritance. If there is a will the wishes of the decedent are carried out as closely as possible. For example, in Florida you can't disinherit a surviving spouse -- even if the will says so.

The next project is to determine what the probate assets are. When there is a will, sometimes the assets are listed, and sometimes not. Sometimes assets have been acquired since the will was signed, and sometimes the will's language is very general. Language like I leave all that I own to my brother, John Adams; and leave nothing to my brother George Washington, is perfectly legal. While you cannot disinherit a spouse, you can certainly disinherit anyone else, including children. It is considered best practice if someone is to be disinherited to name that person in the will to avoid a possible will contest that could claim the disinheritance was a mistake.

A probate asset is property that was owned by the decedent in his or her name only. Real property in more than one person's name may or may not be a probate asset. If the form of ownership with another person or persons is "tenants in common" it is a probate asset. If it is owned by another person or persons as "joint tenants with right of survivorship" or owned with the surviving spouse, then the property is not a probate asset. Joint bank accounts are not probate assets. A bank account with a transfer on death (TOD) designation is not a probate asset. Life insurance with a person's name as beneficiary is not a probate asset; but life insurance naming "the estate of ..." is a probate asset.

And, next, determine whether the estate is indebted. If there is credit card debt, some credit card companies will write off the debt, others won't. It never hurts to ask. The credit card companies that will write off the debt, usually require nothing more than a written request and a copy of the death certificate.

Florida Statute 735.203

(1) A petition for summary administration may be filed by any beneficiary or person nominated as personal representative in the decedent’s will offered for probate. The petition must be signed and verified by the surviving spouse, if any, and any beneficiaries except that the joinder in a petition for summary administration is not required of a beneficiary who will receive a full distributive share under the proposed distribution. However, formal notice of the petition must be served on a beneficiary not joining in the petition.

Despite the plain language of the above statute some clerks of court and even some judges are adamant that a Petition for Summary Administration of Estate must be signed and filed by an attorney. As far as we know, Sarasota County and Washington County refuse to allow pro se litigants to file summary administration of estate.