Florida Small Estates General Summary Law


Wills and Estates – Small Estates – Florida

Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:

1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.

2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.

Florida Summary:
Under Florida statute, where as estate is valued at less than $75,000, any beneficiary of the estate may file a petition for summary administration of the estate within two years of the death of the decedent. Upon approval by the court of the petition, the court may order the immediate distribution of the assets of the estate. Please see the statutes below for details.

Florida Requirements:
Florida requirements are set forth in the statutes below.

735.101 Family administration; nature of proceedings.–Family administration may be had in the administration of a decedent’s estate when it appears:

(1) In an intestate estate, that the heirs at law of the decedent consist solely of a surviving spouse, lineal descendants, and lineal ascendants, or any of them.

(2) In a testate estate, that the beneficiaries under the will consist of a surviving spouse, lineal descendants, and lineal ascendants, or any of them, and that any specific or general devise to others constitutes a minor part of the decedent’s estate.

(3) In a testate estate, that the decedent’s will does not direct administration as required by chapter 733.

(4) That the value of the gross estate, as of the date of death, for federal estate tax purposes is less than $60,000.

(5) That the entire estate consists of personal property or, if real property forms part of the estate, that administration under chapter 733 has proceeded to the point that all claims of creditors have been processed or barred.

735.103 Petition for family administration.–A verified petition for family administration shall contain, in addition to the statements required by s. 733.202, the following:

(1) Facts showing that petitioners are entitled to family administration, as provided in s. 735.101.

(2) A complete list of the assets of the gross estate for federal estate tax purposes and their estimated value.

(3) An appropriate statement that the estate is not indebted or that provision for payment of debts has been made or the claims are barred.

(4) A proposed schedule of distribution of all assets to those entitled thereto as surviving spouse, heirs, beneficiaries, or creditors.

The petition shall be signed and verified by all beneficiaries and the surviving spouse, if any. The petition may be signed on behalf of a minor or an incompetent by her or his legal guardian or, if none, by her or his natural guardian.

735.107 Family administration distribution.–

(1) Upon filing the petition for family administration, the will, if any, shall be proved in accordance with chapter 733 and be admitted to probate.

(2) If the estate consists of personal property only, then, after such hearing as the court may require, an order of family administration may be entered allowing immediate distribution of the assets to the persons entitled to them.

(3) The order of family administration and the distribution so entered shall have the following effect:

(a) Those to whom specified parts of the decedent’s estate are assigned by the order shall be entitled to receive and collect the parts and to have the parts transferred to them. They may maintain actions to enforce the right.
(b) Debtors of the decedent, those holding property of the decedent, and those with whom securities or other property of the decedent are registered are authorized and empowered to comply with the order by paying, delivering, or transferring to those specified in the order the parts of the decedent’s estate assigned to them by the order, and the persons so paying, delivering, or transferring shall not be accountable to anyone else for the property.
(c) After the entry of the order, bona fide purchasers for value from those to whom property of the decedent may be assigned by the order shall take the property free of all claims of creditors of the decedent and all rights of the surviving spouse and all other heirs and devisees.
(d) Property of the decedent that is not exempt from claims of creditors and that remains in the hands of those to whom it may be assigned by the order shall continue to be liable for claims against the decedent until barred as provided in this law.
(e) The petitioners for the order of family administration shall be personally liable for all lawful claims against the estate of the decedent, but only to the extent of the value of the estate of the decedent actually received by each petitioner, exclusive of the property exempt from claims of creditors under the constitution and statutes of Florida.
(f) After 2 years from the death of the decedent, neither her nor his estate nor those to whom it may be assigned shall be liable for any claim against the decedent, unless proceedings have been taken for the enforcement of the claim.
(g) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but was not included in the order of family administration and distribution may enforce her or his rights against those who procured the order in appropriate proceedings and, when successful, shall be awarded reasonable attorney’s fees as an element of costs.

(4)

(a) If the estate of the decedent includes real property and administration under chapter 733 has proceeded to the point that all claims of creditors have been processed or barred, or upon the satisfaction of all claims of creditors, if any, and after such hearing as the court may require, an order of family administration may be entered and the personal representative authorized to make distribution of the assets to the persons entitled to them. Upon evidence satisfactory to the court that distribution has been made, the court shall enter an order discharging the personal representative.
(b) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the order of family administration and distribution may enforce her or his rights against those who procured the order in appropriate proceedings and, when successful, shall be awarded reasonable attorney’s fees as an element of costs.

735.201 Summary administration; nature of proceedings.–Summary administration may be had in the administration of either a resident or nonresident decedent’s estate, when it appears:

(1) In a testate estate, that the decedent’s will does not direct administration as required by chapter 733.

(2) That the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years.

735.202 May be administered in the same manner as other estates.–

The estate may be administered in the same manner as the administration of any other estate, or it may be administered as provided in this part.

735.203 Petition for summary administration.–

(1) A petition for summary administration may be filed by any beneficiary, heir at law, or person nominated as personal representative in the decedent’s will offered for probate and shall be signed and verified by:

(a) The surviving spouse, if any; the heirs at law or beneficiaries who are sui juris; and the guardians of any heirs at law or beneficiaries who are not sui juris; or
(b) The persons described by s. 735.209.

(2) A petition for summary administration shall contain, in addition to the statements required by s. 733.202(2)(b) and (c), the following:

(a) Facts showing that petitioners are entitled to summary administration as provided in s. 735.201.
(b) A complete list of the assets of the estate and their estimated value, together with those assets claimed to be exempt.
(c) A statement that the estate is not indebted or that provision for payment of debts has been made.
(d) A proposed schedule of distribution of all assets to those entitled thereto as surviving spouse, beneficiaries, or creditors.

735.2055 Filing of petition.–

The petition for summary administration may be filed at any stage of the administration of an estate if it appears that at the time of filing the estate would qualify.

735.206 Summary administration distribution.–

(1) Upon the filing of the petition for summary administration, the will, if any, shall be proved in accordance with chapter 733 and be admitted to probate.

(2) After such hearing as the court may require, an order of summary administration may be entered allowing immediate distribution of the assets to the persons entitled to them.

(3) The order of summary administration and distribution so entered shall have the following effect:

(a) Those to whom specified parts of the decedent’s estate, including exempt property, are assigned by the order shall be entitled to receive and collect the parts and to have the parts transferred to them. They may maintain actions to enforce the right.
(b) Debtors of the decedent, those holding property of the decedent, and those with whom securities or other property of the decedent are registered are authorized and empowered to comply with the order by paying, delivering, or transferring to those specified in the order the parts of the decedent’s estate assigned to them by the order, and the persons so paying, delivering, or transferring shall not be accountable to anyone else for the property.
(c) After the entry of the order, bona fide purchasers for value from those to whom property of the decedent may be assigned by the order shall take the property free of all claims of creditors of the decedent and all rights of the surviving spouse and all other heirs and devisees.
(d) Property of the decedent that is not exempt from claims of creditors and that remains in the hands of those to whom it may be assigned by the order shall continue to be liable for claims against the decedent until barred as provided in this law.
(e) The petitioners for the order of summary administration shall be personally liable for all lawful claims against the estate of the decedent, but only to the extent of the value of the estate of the decedent actually received by each petitioner, exclusive of the property exempt from claims of creditors under the constitution and statutes of Florida.
(f) After 2 years from the death of the decedent, neither the decedent’s estate nor those to whom it may be assigned shall be liable for any claim against the decedent, unless proceedings have been taken for the enforcement of the claim.
(g) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the order of summary administration and distribution may enforce his or her rights in appropriate proceedings against those who procured the order and, when successful, shall be awarded reasonable attorney’s fees as an element of costs.

735.2063 Notice to creditors.–

(1) Any person who has received an order of summary administration may publish a notice to creditors according to the requirements of s. 731.111, notifying all persons having claims or demands against the estate of the decedent that an order of summary administration has been entered by the court. Such notice will specify the total cash value of the estate and the names and addresses of those to whom it has been assigned by such order. Such notice, if published, shall be published once a week for 2 consecutive weeks in a newspaper published in the county where such order was entered, and proof of publication of such notice shall be filed with the court.

(2) If proof of publication of such notice is filed with the court, all claims and demands of creditors against the estate of the decedent shall be forever barred unless such claims and demands are filed with the court within 3 months from the first publication of such notice.

735.209 Joinder of heirs, devisees, or surviving spouse in summary administration.–

(1) When any heir, devisee, or surviving spouse is authorized or required under this part to join in any agreement or petition and any such person has died, become incompetent or is a minor, or has conveyed or transferred all of his or her interest in the property of the estate, then:

(a) The heirs, devisees, and surviving spouse, if any, of a deceased person,
(b) The personal representative, if any, of the estate of a deceased person,
(c) The guardian of an incompetent or minor, or
(d) The grantee or transferee of any of them shall be authorized to join in such agreement or petition instead of the heir, devisee, or surviving spouse.

(2) The joinder in, or consent to, a petition for summary administration is not required of an heir or beneficiary who will receive his or her full distributive share under the proposed distribution. Any beneficiary not joining or consenting shall receive formal notice of the petition.

735.301 Disposition without administration.–

(1) No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

(2) Upon informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that subsection (1) is applicable, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.

(3) Any person, firm, or corporation paying, delivering, or transferring property under the authorization shall be forever discharged from any liability thereon.

735.302 Income tax refunds in certain cases.–

(1) In any case when the United States Treasury Department determines that an overpayment of federal income tax exists and the person in whose favor the overpayment is determined is dead at the time the overpayment of tax is to be refunded, and irrespective of whether the decedent had filed a joint and several or separate income tax return, the amount of the overpayment, if not in excess of $500, may be refunded as follows:

(a) Directly to the surviving spouse on his or her verified application; or
(b) If there is no surviving spouse, to one of decedent’s children who is designated in a verified application purporting to be executed by all of the decedent’s children over the age of 14 years.
In either event, the application must show that the decedent was not indebted, that provision has been made for the payment of the decedent’s debts, or that the entire estate is exempt from the claims of creditors under the constitution and statutes of the state, and that no administration of the estate, including summary administration, has been initiated and that none is planned, to the knowledge of the applicant.

(2) If a refund is made to the surviving spouse or designated child pursuant to the application, the refund shall operate as a complete discharge to the United States from liability from any action, claim, or demand by any beneficiary of the decedent or other person. Nothing in this section shall be construed as establishing the ownership or rights of any person in the refund so distributed.