Formal Probate Administration in Florida

In Florida, Formal Probate Administration is require in most cases where the decedent passed away less than two years ago and there are non-exempt estate assets having a value of more than $75,000. Formal probate administration in Florida involves having the court appoint a personal representative or executor for the estate, who assists in collecting estate assets, facilitating the payment of creditor claims and then in the distribution of the remaining estate assets to the heirs or beneficiaries. Centrally located in Orlando, Florida the Kracht Law Firm, PA and AFloridaProbate.com provide formal probate administration services statewide and in some cases at a "Flat-Fee" - contact our Orlando Probate Attorneys today. 

In Florida, Formal Probate Administration is required where: 

1. There are more than $75,000 in non-exempt probate assets and the decedent passed away less than two (2) years ago; or 
2. Where the decedent's written Last Will and Testament specifically requires that the estate be formally administered. 

In a formal probate administration in Florida, the "estate" must be represented by a "Personal Representative" often referred to as a PR.  In many states, this  is called an executor or administrator.    The Personal Representative is appointed when the judge issues Letter of Administration, this document authorizes the Personal Representative to act on behalf of the estate and imposes a fiduciary duty on the PR to act honestly and in the estates best interest.

Not just anyone can serve as Personal Representative in a Florida probate estate?

Florida Statute, Sec. 733.303 (2017), prohibits convicted felons, minors, and individuals who are mentally or physically unable to handle the work from serving as Personal Representative in a Formal Probate Administration. Beyond those prohibitions however, almost anyone can qualify.  In Florida the Personal Representative of an estate is chosen based on a statutory hierarchy, which is dependent on whether the estate is intestate (no will) or testate (will).

In a testate estate, where the decedent left a written Last Will and Testament,  the order of preference for appointment as Personal Representative, so long as they are eligible to serve, is:

1. First, the person or entity specified in  the will or nominated by a power conferred by the will;
2. Second, any successor to the person or entity specified in the will or nominated by a power conferred by the will;
3. Third, the best-qualified devisee under the will as selected by the court; or
4. Fourth, any capable person appointed by the court.

In an intestate estate, where the decedent did not have a written Last Will and Testament,  the order of preference for appointment as Personal Representative, so long as they are eligible to serve, is:

1. First, the surviving spouse;
2. Second, the person selected by a majority in interest of the heirs;
3. Third, the heir nearest in degree, or the best-qualified heir as selected by the court where more than one apply for appointment as Personal Representative; or
4. Fourth, any capable person appointed by the court.

There are special rules for individuals that live outside Florida, and are seeking appointment as Personal Representative in a formal probate administration in Florida.  Florida law, see Florida Statutes, Sec. 733.304 (2017), which provides that a nonresident can serve as Personal Representative, only if the person is:

1. A legally adopted child or adoptive parent of the decedent;
2. Related by lineal consanguinity to the decedent;
3. A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
4. The spouse of a person otherwise qualified under this section.

This means that a nonresident cannot serve as Personal Representative, unless he or she is the decedent’s spouse, sibling, parent, child, or one of the other enumerated close relatives.  

In Florida the Personal Representative must notify creditor of the decedent so they can file claims in the probate to settle the decedent's debts. The Personal Representative must file, serve, and publish in a local newspaper a Notice to Creditors. The Notice to Creditors must contain the name of the decedent, the case number of the estate and the name and address of the Personal Representative and their attorney. This Notice to Creditors must be published once a week for two consecutive weeks. The Personal Representative must also "make a diligent search for know or reasonably ascertainable creditors. 

As to known creditors once a creditor is served with a Notice to Creditor they have 30 days to file a claim. Concerning unknown creditors once the Notice to Creditors has been published a creditor has 90 days to file a claim against the decedent's estate. 

Pursuant to Section 733.710, Florida Statutes "Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section." In short claims are time barred two years after the decedent's death, any claims must be filed prior to the two year deadline or they will be unenforceable.