Summary Administration and Homestead Real Property

Most Florida homeowners know that Florida has the strongest homestead laws in the country. Besides, a discount on property taxes, homestead laws provide protections from creditors. But, many homeowners don't realize that some of these protections extend to their heirs or beneficiaries when they die. And, even though the value of the homestead property exceeds the estate value of $75,000. to qualify for a summary administration of estate, the summary process can still be used.

Florida summary administration of estate is a faster way to settle an estate, and does not require an attorney. Here is the statute:

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.

An estate with a value of more than $75,000 is called a formal administration of estate and an attorney is required.

When someone with Florida homestead property dies, the real property, the decedent's home is considered an exempt asset. The value of the homestead property is excluded from the $75,000 ceiling amount to qualify for the summary process and retains its protections as it passes to the heirs or beneficiaries.

For example, when Louise dies, she has as estate assets: her home which is homesteaded, and $5000. in a bank account. The value of her home as shown on the tax assessor's website is $200,000. and the bank account is in her name only. Even though the value of the estate exceeds $75,000. her estate can still go through the summary process, because the value of the homestead real property is excluded and exempt.

The benefit to her heirs or beneficiaries in being able to use the summary process are (1) no attorney is required; and (2) the filing fees are lower; and (3) the process is faster. The summary process is generally complete in 6-8 weeks, while the formal process can take 1-2 years. Since an attorney is not required, a beneficiary or personal representative can file the documents to settle the estate. So, Louise's heirs or beneficiaries can save money and receive their inherited assets in much less time.

The homestead exemption also provides protection against claims of creditors. Let's say, in this same scenario, Louise left outstanding credit card debt of $18,000. The credit card company could place a claim against the estate and be entitled to the funds in the bank account, but the credit card company would not be entitled to place a lien on the homestead property or force the sale of the homestead property for the remaining amount Louise owed.

Many of our FALDP members prepare documents for Summary Administration of Estate. Please contact us if we can help you with a Summary Administration of Estate. Visit our site or call 800-515-0496.

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. 

How to Obtain Decedent's Credit Report for Summary Administration of Estate

Many Floridians don't realize that it is possible to settle the estate of a family member without an attorney. In certain circumstances, when the value of the entire estate is less than $75,000. excluding exempt property; or when the person died more than two years ago; an attorney may not be required. It is common for estates to qualify for summary administration, and with some of your own research and help from a document preparer, the estate assets can be passed to the heirs.

One step that may be required is to obtain the credit report of the family member who died. This will help you discover if there are outstanding debts that must be paid before the estate can be settled.

Here’s what to do:

 Step 1.  Gather the documents you will need. If your family member prepared a durable financial power of attorney before he or she died and named you as the financial agent, make a copy of that document.

Step 2. Mail a copy of the certified death certificate and either the copy of your father’s durable power of attorney or a copy of the letters testamentary to all three credit reporting agencies. Include a cover letter explaining what you are trying to accomplish, and make sure the deceased’s name, address and Social Security number are clearly identified in the letter. Here are the mailing addresses of the credit reporting agencies:

TransUnion LLC
P.O. Box 2000
Chester, PA 19022

Equifax Information Services LLC
Office of Consumer Affairs
PO Box 105139
Atlanta, GA 30348

Experian
P.O. Box 2002
Allen, TX 75013

TransUnion’s recommends that you update your deceased father’s credit reports by:

1. Contacting all of his creditors and requesting that they update their records to show that he is dead. The creditors will probably want you to forward to them a copy of his death certificate, if they have not already been notified of the death.

2. Check with the Social Security Administration to ensure that it has updated its files. Refer to the blue page of your local telephone directory for the address and phone number of the nearest Social Security office. Or, use this online tool to find a local office.

Experian explains on its web site that spouses, executors or others representing the deceased can request that a “deceased indicator” be added to the deceased’s credit report by providing a copy of the death certificate to its consumer assistance center. The indicator will help prevent identity theft.

Unclaimed Assets:

Also, you may want to search the State of Florida Unclaimed Property Division. People frequently find assets through this site, it may be a refund check, a bank account, or any number of things that may have been overlooked. According to the FAQ on that site:

What if the Original Owner of the Property is Deceased?

Proof of ownership (detailed below) must still be established with documentation (as detailed on your claim form). In addition, you must provide a certified death certificate for the owner, along with identification and signed claim forms for all heirs of the owner (or for the personal representative if the estate remains open). Additional documentation may be required depending on the specific case. Please review the Florida Administrative Code section 69I-20.0022 (paragraph 3) for more information.

What Types of Identification are Accepted?

Florida law requires claimants to provide a copy of their driver's license or another form of government-issued photographicidentification. If your Identification does not reflect your current address, please include other documentation (such as a current utility bill, etc.) reflecting your current mailing address in addition to your Identification and proof of ownership. If the account has more than one owner and one of the owners is deceased, a certified death certificate for the deceased owner is required in addition to the Identification for the person claiming the account. Note: Each claimant must submit identification and sign the claim form.