You’ve got the original Last Will and Testament and it declares you as the Personal Representative (or Executor, Administrator).

You were the “chosen one”, right?

It says that so it must be so!  Right?

Wrong.

When a person drafts a Will, they are nominating someone to act as Personal Representative (PR), Executor or Administrator of the estate.

Until a probate judge officially admits the Will to probate and subsequently appoints you as the personal representative, you have ZERO authority to act on behalf of the estate.

When someone starts asking you for items such as “Letters of Administration” or “Letters Testamentary”, they are asking for proof that the person who claims to be the PR, actually has authority and proof.

On the other  hand, there are many times that a PR doesn’t even need to be appointed – summary administration for example!

Oh and one other thing.  Convicted felons need not apply.  Even if you are nominated in the Will, you are ineligible to act as PR.

Florida probate administration has two (2) primary types:  Summary Administration or Formal Administration

So which do you choose?  The red pill or the blue pill?

Neither. The analogy doesn’t really fit (I just liked the photo).

Here’s a better analogy (I hope):

Summary Administration is like a closet:

• Open closet door
• Reach in to grab what you need
• Close closet door

Formal Administration is like a hallway:

• Open hallway door
• Walk down the hallway
• Take care of tasks along the way
• Exit door at the end of the hallway

Why the analogy?

Because if you have a choice, you must choose wisely.

Summary Admin Pros/Cons

Pros

1. Shorter proceeding (2-5 months)
2. Fewer hoops & hurdles
3. Less work, ergo less expensive

Cons

1. A personal representative is not officially appointed
2. All assets should be accounted for before filing
3. Banks and financial institutions are often confused by summary administration orders
4. Not every estate is eligible for summary administration

Formal Admin Pros/Cons

Pros

1. A personal representative is appointed (with power to secure information about any assets or debt)
2. Comprehensive/Complete proceeding
3. Banks and financial instutations are more comfortable when you present “Letters of administration” (see #1)
4. Best choice when there are many known creditors

Cons

1. Longer proceeding (5-12 months typically)
2. More work, ergo more expensive

Which to choose? Summary seems like the obvious choice, but even if the estate is eligible, it may not always make the most sense or it might be impractical for your case.

For example, here’s a snapshot of mom’s estate:

• A checking account with less than $50,000
• There are no known creditors
• The bank wants letters of administration to release the money
• There may be another savings account which is believed to be less than $10,000 at another bank but they won’t give any information without letters of administration

Summary or Formal?

Final answer?

Answer:  It depends.

Here’s why:

In formal administration, a personal representative/executor is officially appointed by the court and “letters of administration” are issued by the judge granting full authority to ask questions, collect assets and otherwise administer the estate.  Banks are happy when they see the letters because they are familiar (read: it’s in the bank’s policy manual.)  The bank with the savings account will readily hand over the info you need about the savings account and allow you to liquidate without much hassle.

In summary administration, a PR/executor is not appointed, but since the savings account is less then $10,000 (which would mean the total size of the estate is no more than $60,000), perhaps we don’t need a PR appointed.  We just petition the judge to sign an order distributing the estimated value of the assets.  To heck with presenting the letters of admin – just show them the summary orders! Most bank reps scratch their heads when they see summary orders, but eventually, they will understand and distribute funds.

There are quite a few variables to consider when making the choice.  Make no mistake… every probate case is different, even if the differences are minute.  Be sure you’re making an informed choice!

Though there are rare ocassions where claims can be enforced, it is simply that … rare.

What does this mean to a probate petitioner?

1. A Notice to Creditors need not be published (saving anywhere from $100 to $300 on publication costs).

2. Summary Administration is generally available (short form probate).

3. No waiting 90 days for the creditor period to expire before assets are distributed.

Please don’t misunderstand. There are plenty of reasons to pursue probate even if it has been less than 2 years since the date of death, but the 2 year rule is always a welcome situation.

We just finished preparing our FREE Florida Probate ebook for anyone who is faced with the possibility of probate (that means you!)

Our book is filled with information with answers to questions such as:

… “What the heck is Summary Administration?”
… “Why do I need an attorney?”
… “What is considered personal property?”
… “Do I really have to go through Formal Administration?”
… “Will probate prevent me from selling the house?”
… and much much more!

It’s a completely free download, and as an added bonus, you’ll get periodic tips on how to manage your own estate assets, learn about new issues and trends in Florida probate and much much more.

Give me my book!

Of course you can always just fill out our call back form and an attorney will call you back to discuss your case!

Huh?

Okay, where do I begin?

There are invariably two kinds of Wills that come across my desk:  “Self-Proved” and NOT “Self-Proved”.

Silly, I know, but the difference is quite significant.

Self-Proved Wills

A Will is “Self-Proved” if there is an Affidavit attached to the Will which essentially says that the Will was signed by the testator before 2 witnesses and a notary public.  This is often referred to as a “Self-Proving Affidavit” and frankly, I prefer when it’s titled that way…makes it foolproof (sometimes it will just say “Affidavit”).  The first clue that there is such an affidavit attached to the Will is a notary seal or stamp towards the end of the Will.

If the Will is indeed “Self-Proved”, it should be admitted into probate administration without the necessity of any further proof.  Neither the witnesses or the notary public need be located for further testimony or confirmation.

Wills that are NOT Self-Proved

When there is no such affidavit, things become a bit more complicated.

We now have to determine if the decedent was domiciled in Florida or another state, that is, where did the decedent maintain his or her permanent resident (prior to death.)

Decedent was not “domiciled” in Florida

If the decedent was NOT a domiciled in Florida, but the decedent’s estate was administered (“probated”) in the decedent’s home state, then there is likely to be an “Order Admitting Will to Probate” or some equivalent in that state.  The existence of such an Order is typically enough for the Will to be admitted in a Florida probate court.

However, if the decedent’s estate was never probated in the “home state,” then we will have to appoint a commissioner to take the oath of at least one of the original witnesses to the Will.  Alternatively, you also have the option to have the personal representative take a similar oath if the witnesseses have died or are otherwise cannot be located.

This process of appointing a commissioner is accomplished through a “Petition to Appoint Commission.”

Decedent was “domiciled” in Florida

If the decedent was domiciled in Florida, we must secure an Oath of Witness.  The witness generally must appear before a clerk of court in any county in Florida as part of a “proof of will” process.  Once that is completed, the Will should be admitted barring any objection from a third party.

I’ll avoid getting to detailed with further legal protocol at this point.  That said, you should realize that this is a rather complicated process – much more so that most people realize.

Moral of the story:  Make sure your Will contains language equivalent to Florida’s “Self-Proving Affidavit.”  You and your heirs will be glad you did!

You probably can’t find them.

They are for attorney-use only because most probate cases in Florida require representation by an attorney (yep, even for the “simple” cases)

Even if you can, you are taking a huge risk.

Why? In all but very small situtations, a personal representative (executor) must be represented by an ATTORNEY. (Not a Paralegal)

I haven’t researched it recently, but the probable reason is that the probate system is vulnerable to fraud by claimants, heirs, personal representatives and petitioners. I suppose the legislature decided the potential fraud outweighs the inconvenience of requiring attorney representation.

Even if you do find forms, it isn’t simply a matter of filling them out, checking boxes and signing paperwork. They have to be prepared in a certain manner, with proper clause inclusions and omissions contingent upon supporting documentation.

For example:

Is the Will self-proved? Was a domiciliary proceeding filed in any other state? A host of other questions can change the way those “forms” should be prepared and the kind of supporting documentation that must be submitted.

Yes, the clerk may accept the forms you submit, but in 100% of the cases I’ve taken where the client tried to do it themselves, something went wrong.

Even worse, you may make it even harder for the attorney to fix your mess.

Mistakes can be expen$ive: once you submit a Petition, it becomes a part of the record and having an attorney back you out of the mess can cost more than if you had started with representation.

There is one isolated proceeding, “Disposition of Personal Property without Administration” that doesn’t require an attorney, but because the asset thresholds are so strict, most clients will require Summary or Formal Probate Administration.

You certainly don’t have to retain us, but you should retain someone!

Forget the search for forms.

If you want to talk about the ins and outs of your probate case, call me.

The boommers of our generation are quick to educate themselves as their parents face the end stages of life and quite often I’ll get the call from the hospital to draft up a “quick and dirty” Last Will or Trust. I’ve yet to prepare an estate plan for someone on their proverbial death bed because I just don’t like the potential consequences of an estate contest, regardless of my confidence in the integrity of the execution/signing process.

The inevitable conversation follows:

Client: How on earth do I avoid probate in Florida?

LHD: How large is your estate?

Client: Well, I’ve got a house (my homestead), two cars and a bit of life insurance.

LHD: Why do you think you need to avoid Florida probate?

Client: So I don’t have to pay an attorney!

Is that the only reason everyone wants to avoid probate? Or is it that they’ve just failed to educate themselves about the process?? I choose the latter.

Come on people, it’s not jail time … it’s the court-supervised process of passing on your assets. Court supervision ain’t all that bad. Almost everyone has a family member they wouldn’t dare leave their children, rolex or porsche keys with… and if that very same person ended up with some influence on your Florida probate administration, wouldn’t you want it to be supervised by a judge??

But what about a living trust? Your brother in law raved about his fancy 100 page trust. 100 bucks says the eventual trustee, his wife, has NO idea how or why it may avoid probate.

Trusts are usually overkill for most estates. They are NOT asset protection and your trustee might need an attorney to properly administer the trust after your gone anyways!

Bottom line: There is no one size fits all for estate planning and probate just isn’t that bad … if you plan smart.