When someone passes away owning real property in Florida, their loved ones often have to face Florida’s probate system. This statement is true even if the individual who passed away was not a resident of Florida at the time of their death. The probate process can seem daunting, especially for those unfamiliar with Florida law. To better understand the Florida probate system, and the various types of probate administration, here are a few things you need to know.

WHAT DOES PROBATE MEAN IN FLORIDA? Probate is a court-supervised process that ensures a deceased person’s assets are distributed properly, and any debts left behind are settled. This could involve a range of things like validating a will, paying off creditors, and distributing assets to beneficiaries.

THE TYPES OF PROBATE ADMINISTRATION There are two forms of probate used in Florida: formal administration and summary administration. Both forms of probate apply even if a person dies without a will (intestate).

1. Formal Administration: This is the full, detailed process required for an estate worth over $75,000. It involves appointing a personal representative (think of it as an executor), reviewing an inventory of assets, notifying creditors, and ensuring debts get paid before the beneficiaries receive their shares. This form can take up to a year or more to finalize.
2. Summary Administration: This option is quicker and generally more cost-effective. It applies to small estates valued at $75,000 or less or when the decedent has been deceased for more than two years. It does not require the appointment of a personal representative, and any individual or creditor with an interest in the estate can petition the Court. In addition, if the decedent has been deceased for more than two years, creditor claims against the estate are barred.

WHAT NONRESIDENTS NEED TO KNOW If a nonresident owned real property in Florida at the time of their death, a specific type of probate called ancillary probate is required to transfer such property to the legal heirs or beneficiaries. Even if the person’s primary estate has already been settled in another state, Florida requires its own process for any real property assets within state borders.

Ancillary probate can be formal or summary, depending on the estate’s value or how long the person has been deceased.

CHOOSING A PERSONAL REPRESENTATIVE One twist in Florida’s probate rules is that personal representatives, the person responsible for administering the estate, must meet specific qualifications. Nonresidents can only serve as personal representatives if they are 18 or older and related to the decedent by blood, marriage, or adoption. This rule can complicate things if the person nominated (either in a will or by the legal heirs) doesn’t meet Florida’s requirements. In such cases, the court might need to appoint someone else, which can delay the whole process.

AVOIDING STATE PROBATE Florida property can be kept out of probate by (i) establishing a revocable living trust, (ii) using a “Lady Bird” deed (which allows the property to pass directly to a beneficiary at death), or (iii) titling property as joint tenants with the right of survivorship. Business interests can avoid probate as well by transferring ownership into a revocable trust or with a properly drafted operating agreement or shareholders agreement.

In Conclusion: Navigating Florida probate can feel overwhelming, especially for nonresidents. Understanding the process, whether formal or summary administration, and knowing the importance of choosing a qualified personal representative is key. Ancillary probate may be necessary, but options like revocable trusts, Lady Bird deeds, and business succession planning can avoid probate altogether. With proper legal guidance, families can simplify estate management and find peace of mind.

The probate and estate planning attorneys at Blalock Walters are here to help. Please contact us at: (941) 748-0100 or email Jeffrey Mytinger at jmytinger@blalockwalters.com.