Administration of an estate, or probate, is the process of resolving the debts and transferring the assets of a person who has died. Administration of the estate may be done in accordance with the terms of a last will and testament, if one has been executed by the decedent, or under the laws of intestacy if the decedent did not leave a will.
The process of formal administration of an estate can be confusing and generally requires the assistance of an experienced lawyer. Formal administration is meant for estates that exceed $75,000 in total assets, or when there is real estate involved. Additionally, formal administration may be used in smaller estates when there are creditor issues to be resolved.
As a general rule, creditors of the estate must be notified directly and by legal publication to allow time for creditors to make claims for unpaid debts against the estate. Once debts have been resolved, assets can be distributed to those entitled to inherit the remaining property. It is important to know that there are certain assets that can be protected from creditor claims against the estate, so long as the appropriate petitions are filed with the court. Failure to file timely petitions with the court during the probate process may result in protected assets and property being exposed to collections by estate creditors.
Additionally, the primary residence of the decedent may be exempted from creditor claims under Florida's Constitutional Homestead protections. The homestead protection afforded to a primary residence also comes with certain restrictions regarding who may inherit the property in particular cases.
Formal administration of the estate is time consuming and proper advice and counsel can help to ensure that the estate property is fully accounted for and properly distributed.
Under Florida law, any interested party may petition the court to open administration. This includes the creditors of the estate or a person who is legally entitled to the inheritance of the estate property. Upon petition, the court must appoint a personal representative of the estate. Regardless of the person who files the petition, the law provides for preference in the appointment of a personal representative which may be a person named in the will, or in cases without a will, a family member in accordance with the law. It is important to resolve who will act as the personal representative in a timely manner to ensure protection of the assets and property of the estate, and to properly administer the estate.
As an interest party in an estate, you have the right to ensure that the estate is administered in accordance with the law. When a personal representative is appointed to the estate they are acting in a fiduciary capacity which means the personal representative must act in good faith and follow the law regarding the handling of the estate. Should a personal representative fail to act in accordance with the law, an interested party may file certain petitions with the Court seeking to enforce the law regarding the administration of the estate, seeking the removal of the personal representative for breach of fiduciary duty, and possibly surcharge or other actions seeking damages and repayment from the personal representative.
When a person whose primary residence was in Florida dies, there may be other property, such as a home, located outside the state of Florida. It is important to know that multiple proceedings may need to be initiated in different jurisdictions to effectively administer the estate. When a person's primary residence was in Florida, the local estate is called the domiciliary estate. Ancillary administration is the process that is handled in jurisdictions outside of Florida, and typically involve real estate in another state.