How to Open a Formal Probate Estate in Florida
An Overview of Florida's Formal Probate Process
The State of Florida boasts a streamlined probate process known as "Summary Administration" that may be used by estates with less than $75,000 worth of assets, or estates where decedents have been dead for more than two years. Estates that do not meet these criteria must follow the more time-consuming probate court-supervised process known as "Formal Administration."
While some states collect graduated probate filing fees that are based on the value of the estate, Florida imposes a $400 flat fee for each estate that files for a formal probate.
The Florida probate court may require the following documents from those looking to open a formal probate administration:
Petition for Formal Administration. This document must contain the following information:
- All pertinent information about the person filing the petition, including name, address, interest in the estate, and the name and address of the petitioner's probate attorney.
- All pertinent information regarding the decedent, including legal name, last known address, age at the time of death, the last four digits of the Social Security number, place of death, and state and county of domicile.
- All pertinent information about the beneficiaries of the estate, including legal names, addresses, dates of birth of any minors, and the nature of relationships to the decedent.
- The reason for choosing the county where the petition is being filed, for probating the decedent's estate.
- The reason for naming the chosen Personal Representative (executor), and a list of his or her qualifications to serve under Florida law.
- An itemized list detailing the value and nature of the decedent's assets.
- A declaration whether or not an estate will be required to file federal estate tax return, IRS Form 706.
- A declaration if the decedent had a Last Will and Testament, a statement identifying all unrevoked wills, and any amendment to the wills (called "codicils"), that have been presented for probate, e.g: "Last Will and Testament dated July 1, 2015; First codicil dated July 1, 2017."
- A declaration if the decedent did not have a Last Will and Testament.
- A declaration stating that after the exercise of reasonable diligence, the petitioner was unable to locate any Wills or codicils.
Petition to Waive Bond. If the decedent had a Last Will and Testament, the document will typically request that the bond be waived. If the decedent did not have a Last Will and Testament, a "Petition to Waive Bond" may be filed with the probate court, along with joinders, waivers, and consents signed by all of the beneficiaries. In either scenario, there is no guarantee that the probate judge will grant this request.
Waiver of Priority, Consent to Appointment and Waiver of Notice and Bond. Waivers may be signed by all beneficiaries to indicate their review and approval of the relief sought by the Petition for Administration. In other words, the waiver makes it clear that the beneficiary does not protest the decedent’s will, and has no intention to contest it.
Original Death Certificate.
Last Will and Testament. If the decedent had a Last Will and Testament, then the original Will must be filed with the probate court. No copies will be accepted.
Oath of Witness to Will. If the Will is not signed before two witnesses and a Notary Public, using an acceptable form of a self-proving affidavit (see F.S. §732.503), then the oath of at least one of the witnesses must be taken before a Florida Circuit Court Judge or Clerk, or an out-of-state Commissioner appointed by the probate judge.
What Probate Orders Are Required to Open a Formal Administration in Florida?
Once the probate judge has reviewed and approved the Petition for Administration and related documents, he or she will issue the following orders:
- Testate estates. If the decedent died testate (having signed a valid Last Will and Testament before death) then the probate judge will sign an Order Admitting Will to Probate and Appointing Personal Representative as well as Letters of Administration. The Letters are needed by one's Personal Representative to prove that he or she has been named executor, by the probate judge.
- Intestate estates. If the decedent died intestate (without signing a valid Last Will and Testament prior to death) then the probate judge will sign an Order Appointing Personal Representative and Letters of Administration.