1. Three (3) Types of Legal Proceedings. Florida has three (3) type of probate proceedings to transfer title of a decedent’s assets.
(a) Summary Administration.. Florida Statute 735.201(2) provides that summary administration (“Summary Administration”) may be used for either a resident or non-resident decedent’s estate if: (1) the value of the decedent’s entire estate subject to the Summary Administration in Florida, exclusive of exempt property, does not exceed $75,000.00; or (2) the decedent has been dead for more than two (2) years, regardless of the size of the estate.
(b) Formal Administration. This type of administration (“Formal Administration”) must be used if the decedent’s estate does not qualify for Summary Administration when: (1) the decedent’s estate exceeds $75,000.00, or (ii) the decedent has been dead for less than two (2) years, or (iii) the will requires formal administration.
(c) Ancillary Administration. If the decedent has a will that is being probated in a state other than Florida, the non-resident may qualify to petition the court to admit the decedent’s foreign will to record. Upon admittance, the will shall be be as valid as if it were executed in Florida, thus allowing for the probate of the non-resident’s Florida property.
2. Attorneys’ Fees. Florida Statute 733.6171 sets forth a presumptive statutory fee schedule. For example, estates from $100,000 – $1 Million, the fee is 3%. From $1 Million to 3 Million, the fee is 2.5%; from $3 Million to $5 Million the fee is 2%. Additional fees may be charged at an hourly rate for extraordinary services.
3. Florida Homestead (Sand Traps for the Unwary).
(a) If the decedent lived in Florida or had Florida real estate, the possibility of homestead issues must be analyzed. If the decedent split time living in Florida and another state, you must first determine the state of domicile, as only a Florida resident can claim homestead.
(b) If the decedent is survived by a spouse or a minor child, Florida Homestead law will trump anything written in the decedent’s will or trust. The surviving spouse is given a life estate and the minor child a remainder interest.
(c) Homestead real property is not considered part of the probate estate, but the personal representative may have the responsibility to preserve, insure,and protect the homestead status of the property. F.S. 733.608(2).
(d) A Petition to Determine Homestead usually must be filed which may require opening a Formal Administration