Florida Formal Administration - How to Open a Formal Probate Estate in Florida
An Overview of Florida's Formal Probate Process
While Florida has a streamlined probate process called "Summary Administration" that can be used by (a) estates that have assets valued less than $75,000, or (b) estates where the decedent has been dead for more than two years, estates that do not meet either of these criteria will be required to follow the more time-consuming and probate court-supervised process called "Formal Administration."
What is the Filing Fee for Formal Probate Administration in Florida?
While some states collect graduated probate filing fees based on the value of the estate, in Florida the flat fee for each estate filing for formal probate is $400.00.
What is Required to Open a Formal Probate Administration in Florida?
Below is a list of documents that may be required to be filed with the probate court in order to open a formal probate administration in Florida.
Petition for Formal Administration. This document is required to be filed for all estates and must contain the following information:
- All pertinent information about the person filing the petition (the “petitioner”) – name, address, interest in the estate, and the name and address of the petitioner's probate attorney;
- All pertinent information about the decedent – legal name, last known address, age at the time of death, last 4 digits of Social Security number, place of death, and state and county of domicile;
- All pertinent information about the beneficiaries of the estate – legal names, addresses, dates of birth of any minors, and relationship to the decedent (if any);
- Why the county where the petition is being filed is the proper venue for probating the decedent's estate;
- Why the person whose appointment as Personal Representative (Executor) is being sought is entitled to serve and that they are in fact qualified to serve under the laws of Florida;
- Approximate value and nature of the decedent's assets (Note: some counties do not accept a general statement such as "real and personal property valued at approximately $300,000"; instead, the petition must list a description of each individual probate asset and its approximate value, such as "Bank of America checking account, $20,000");
- If the estate will be required to file a federal estate tax return, IRS Form 706, or not;
- If the decedent had a Last Will and Testament, a statement identifying all unrevoked Wills and Codicils being presented for probate (such as "Last Will and Testament dated July 1, 2012," "First Codicil dated July 1, 2013"); and
- If the decedent did not have a Last Will and Testament, a statement that after the exercise of reasonable diligence the petitioner was not able to locate any Wills or Codicils.
Petition to Waive Bond. If the decedent had a Last Will and Testament, then typically it will request that bond is waived. If the decedent did not have a Last Will and Testament, then a Petition to Waive Bond may be filed with the probate court along with joinders, waivers, and consents signed by all of the beneficiaries (more on those below). However, be aware that there is no guarantee that the probate judge will waive bond after a Petition to Waive Bond is filed, or even if the decedent had a Will that requests that bond is waived.
Waiver of Priority, Consent to Appointment and Waiver of Notice and Bond. Waivers may be signed by all of the beneficiaries in order 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 have any problems with the decedent’s Will (in other words, the beneficiary does not intend to file a will contest) or any problems with the person or entity applying to become the Personal Representative.
Original Death Certificate. An original death certificate must be filed with the probate court.
Last Will and Testament. If the decedent had a Last Will and Testament, then the original Will (and originals of any Codicils) must be filed with the probate court. A copy of the will or codicil is not acceptable, and only the original document will be accepted without any further court proceedings.
Oath of Witness to Will. If the Will is not self-proved (meaning signed in front of 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 (usually a Notary Public) 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, the judge will issue the following orders:
- Testate estates. If the decedent died testate – meaning having signed a valid Last Will and Testament prior to death – then the probate judge will sign an Order Admitting Will to Probate and Appointing Personal Representative and Letters of Administration. The Letters are what the Personal Representative needs to prove that he or she has been appointed as the Personal Representative by the probate judge.
- Intestate estates. If the decedent died intestate – meaning without having signed a valid Last Will and Testament prior to death – then the probate judge will sign an Order Appointing Personal Representative and Letters of Administration.