Formal v. Summary Administration
Large or Complex Florida Estates Require Formal Administration
If you have a small estate, such as $75,000 or less, you may be eligible for a “short” probate process or what Florida probate lawyers call “summary administration.” You can read all about summary administration by reading Chapter 735 of the Florida Probate Code.
But when complex estate issues arise, or there is a large estate, summary administration is not permitted. In that case you need “to do” a full blown probate process, what Florida estate lawyers refer to as a “formal administration.”
Is the estate involved in litigation or lawsuits? Is there an IRS audit because the Estate Tax Return 706 took discounts or aggressive tax moves to minimize the estate tax? You are going to need a formal administration process to probate that estate. This can be the case even when most the Florida resident’s assets are in a revocable trust or a living trust.
While a revocable trust seems to be the most common estate planning tool besides a last will, revocable trusts must still pay for the debts of a decedent, including, any estate tax to the IRS. The trustee or successor trustee of a revocable trust must work closely with the executor of the estate, called the Florida personal representative. There are also a number of notices, such as a Notice of Trust, which should be filed and also presented to trust beneficiaries. If the trustee and the personal representative are the same person, then all the trust beneficiaries become “interested persons” in the Florida probate. What does that mean? It means that the trust beneficiaries, which is thought of as “outside of probate”, are entitled to notice and information about everything going on “inside” of the probate. Some Florida probate lawyers make the mistake of forgetting about, or not giving notice to, trust beneficiaries.
Million dollar estates need not go through probate, but there may be very good reasons why a probate is needed. The estate may have to deal with claims of the widow or surviving spouse, such as homestead elections or an elective share lawsuit. (Did you know that in Florida, you cannot dis-inherit your spouse unless he or she consents? Did you know that a widow or spouse gets an automatic inheritance in Florida, even if the will gives you nothing? (Unless you WAIVED your right to an inheritance.) But perhaps just as common as dealing with will contests or elective share or homestead cases, formal probate administration may be required if the deceased Florida resident was involved in a lawsuit before death. In that case, you have to see if the estate can be “substituted in” to that lawsuit in the place of the deceased Florida resident. Can the estate inherit the lawsuit damages or proceeds?
Increasingly, estate planning attorneys write trusts for clients, as well as wills. But you won’t necessarily avoid a probate, especially is someone is fighting over property, money, or an inheritance. Knowing how to deal with a formal probate administration, and what trial strategies or tactics may be appropriate to administer the estate properly, can be the keys to your success that your probate lawyers in Florida have to offer.