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02/21/13 It's The Law: Small Estates Can Get Small Probate

It's The Law

Small Estates Can Get Small Probates

(2/21/13)

Question:

My father recently died. He had only a small bank account and a boat. His will leaves everything to me. Am I going to have to pay for an expensive probate?

Answer:

The Florida Legislature has agreed to a common sense approach to probate of small estates. When assets subject to Florida probate do not exceed $75,000.00, the estate may be probated through summary administration as long as the decedent's will does not direct more formal probate proceeding.

Only assets that are subject to probate are included when determining if an estate qualifies for summary administration. That means any bank accounts, life insurance, retirement accounts and brokerage accounts which are payable upon death direct to a beneficiary or beneficiaries will not be included.

Summary administration is not mandatory. In some cases, formal administration may be preferred, as when the personal representative will be attempting to settle a claim for wrongful death or otherwise pursue action on behalf of the decedent or the decedent's estate. Formal administration opens a probate proceeding, appoints a representative and generally proceeds on basis of administration of the estate as a business operation.

Summary administration is much quicker and less formal. 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 by any surviving spouse and all beneficiaries, except that signature is not required from a beneficiary who will receive a full distributive share under the proposed distribution. If a beneficiary is not required to sign the petition, the beneficiary must still be given formal notice of the proceeding. If a beneficiary has died, is incapacitated, is a minor, or has transferred his interest in property of the estate, the petition must be signed and verified by a personal representative of the deceased person or, if none, surviving spouse and the beneficiary of his estate; guardian of an incapacitated person or minor; or the person to whom the beneficiary's interest in the estate was transferred.

A person petitioning for summary administration must make a diligent search for any known or reasonably ascertainable creditors, serve a copy of the petition on those creditors and make provision for payment of those creditors to the extent assets are available. That means summary administration cannot be used to avoid creditor claims. Notice need not be published in the newspaper, but if notice is published, it will bar claims of all other creditors that are not filed with the court within three months after first publication of the notice.

A petition for summary administration must include a plan of distribution. If there is a will, the distribution plan generally follows the will. However, the beneficiaries can agree among themselves to a different distribution and propose that as part of the petition. The petition is also required to include a description of the estate assets and the estimated value of each.

The court may hold a hearing on the petition for summary administration to resolve any issues. If all beneficiaries have joined in the petition and if there does not appear to be any creditor issues, the court may grant the petition without hearing. If the petition is granted, an order of summary administration is issued.

The order of summary administration confirms distribution is made in accordance with the petition or otherwise established by the court. Florida statutes authorize debtors of the decedent, those holding property of the decedent and those with whom securities or other property of the decedent is registered to comply with the order by paying, delivering or transferring assets in accordance with the order. The order entitles those assigned assets by the order to receive and collect those assets.

In the event creditors are not paid, recipients of assets under summary administration also inherit pro-rata liability for all timely claims against the estate of the decedent. But, as with formal probate, two years after the decedent's death, claims against the estate and persons receiving property from an estate are barred.

Summary administration is much faster and cheaper than formal administration. Attorney fees are minimal and time required for probate is relatively short. For small estates, summary administration is a true blessing. You should consult with an experienced attorney to discuss summary administration of your father's estate.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

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