Florida Probate | Formal Administration in Florida

Formal administration is the most common form of probate in Florida. If an estate does not qualify for summary administration or one of the other alternatives to probate, it must be formally administered. Even if formal administration is not strictly required, it may still be the best choice of Florida probate proceeding.

In formal administration there is close court supervision of the collection and distribution of the decedent’s assets. The process unfolds in three stages: opening the estate, administering the estate, and closing the estate.

Opening an Estate for Probate in Florida

Once the Florida probate attorney has been hired and all preliminary steps have been taken, a Petition for Administration and related documents are filed with the appropriate Florida probate court. Filing these initial documents makes the estate a matter of court record, but the estate is not considered to have been “opened” until the personal representative is appointed to act on behalf of the estate. This requires the judge to review the file and issue Florida letters of administration.

Florida Estate Administration

Once letters of administration are issued, the personal representative can begin administering the estate. This is usually the most labor-intensive phase of the process. While the probate attorney can provide guidance on various issues, it is up to the personal representative to gather the information necessary to move things along. Depending on the circumstances, Florida estate administration may involve the following steps:

• Notify Creditors. A notice of administration should be published as soon as possible. This notice contains identifying information about the estate and informs any potential creditors of their right to present claims in the probate proceeding. Any known creditors must also be provided with service of this notice. In each case, the creditors must be notified that failure to submit a claim within three months of the date of first publication will bar the claim.
• Collect assets. The personal representative is authorized to take possession or control of the decedent’s assets, and is responsible for managing the assets before and during distribution.
• Determine whether to leave assets with beneficiaries. The personal representative can choose to leave property with the person presumptively entitled to it under the last will and testament, or to transfer the property to the person.
• Inventory assets. An inventory of the decedent’s assets should be filed within 60 days of the issuance of letters of administration. This inventory must list the property of the estate in reasonable detail, including the fair market value of each asset.
• Collect debts. The personal representative must collect all outstanding debts owed to the decedent. This includes maintaining actions against debtors that refuse to pay.
• Continue decedent’s business. If there is “a reasonable means of preserving the value of the business,” the personal representative is authorized to continue the decedent’s business for up to four months after his appointment. Continuation of the business after that period may be approved by court order.
• Invest assets. The personal representative may invest estate funds, but must consider the needs of the estate and act as a prudent investor.
• Maintain assets. The personal representative may also, if necessary, borrow money, pay taxes and expenses, employ professionals, and contract with third parties.
• Identify rights of beneficiaries. The personal representative should identify any special rights to which the beneficiaries may be entitled, such as homestead rights or the elective share.
• Prepare interim accounting. Before filing the final accounting, the personal representative has the option of filing one or more interim accountings with the court, but is not required to do so unless the court decides to order it.
• Process claims from creditors. Claims must be paid within one year of the date of publication of notice to creditors, although this time may be extended for good cause. Payment of claims cannot be compelled until five months after publication.
• Prepare objection to claim. Any interested may file an objection to a claim within four months of the publication of notice to creditors or within 30 days of the timely filing of a claim, whichever is later. These time limits may be extended for good cause.
• Handle unmatured and contingent claims. A personal representative may take steps to resolve claims that have not become due before the time for distribution.
• Determine fees. Fees are to be paid from the estate’s assets to various persons for services. These persons include the personal representative, attorneys, accountants, and appraisers. If there are insufficient funds in the estate to pay everyone, then Florida law provides a priority of payment.
• Apportion estate tax. If a testator fails to specify the place in the estate from which taxes are to be paid, then all assets are proportionally taxed, with the taxes being paid by the residuary estate.

Each of these steps takes the estate one step closer to the date on which it can be closed.

Closing the Florida Probate

The Florida probate estate can be closed as soon as the time has expired for creditors to submit claims, all valid creditor claims and expenses of administration have been paid, all tax returns have been filed and taxes have been paid, and all assets are ready for distribution.

To close the estate, the Florida probate attorney will file a petition with the court. The petition lets the probate judge know that all necessary steps have been taken and the estate is ready to be closed. Sometimes the probate judge will request additional information from the probate attorney. Once all information is provided, the judge will sign an Order of Discharge. The Order of Discharge releases the personal representative from his or her duty and brings the estate proceeding to a conclusion.

It’s much easier to close a Florida probate estate if all beneficiaries who could be affected by the distribution sign waivers and consents. Under the “waiver and consent” provisions of the Florida probate code, any interested party can waive any right to notice or to the filing of any document (except inventory) and consent to the petition. If the personal representative is the only beneficiary or if all beneficiaries are comfortable that their final shares of the estate are correct, their waiver and consent to the petition will avoid the need for a formal accounting.

If the beneficiaries will not or cannot sign waivers and consents, the personal representative must make an accounting of the actions undertaken in administering the estate. This must include receipts for all transactions and a list of all income and disbursements. Once a final accounting has been filed, the court will review and approve the accounting.

Related Resources

• Florida Probate: What is Probate?
• Summary Administration in Florida
• Other Florida Probate Alternatives
• Florida Intestate Law and Intestate Succession

The Florida Probate Process

• Florida Probate and Estate Administration
• Florida Last Will and Testament
• Alternatives to Probate in Florida
• Florida Probate | Summary Administration in Florida
• Florida Intestacy and Intestate Succession Law
• Florida Probate | Formal Administration in Florida