In a nutshell, Summary Administration in Florida is a type of probate proceeding for small estates.

To be eligible:

1. The estate must contain less than $75,000 in non-exempt assets (typically, assets other than the decedent’s home) OR
2. At least 2 years have passed since the date of death

No brainer right?

Not exactly.

Lately, I’ve had to remind clients and prospective clients that summary administration has disadvantages.  Not long ago, I discussed the pros and cons of summary administration vs. formal administration and it became clear that I didn’t emphasize the cons very well.

The number one thing you must know about summary administration is that a personal representative  (PR) is not appointed by the court.

In Summary Administration, there is a petitioner, but no PR.  A petitioner does not have the same license to inquire, collect, manage or dispose of assets in the same manner that an appointed PR does.

Example:  A recent client (let’s call him Frank) hired us to handle what appeared to be a relatively straightforward summary administration.  The assets included a homestead (the decedent’s home), 2 cars and a checking account.  That was it.  No other assets.  Frank was sure of it!

Thankfully, Frank’s not a betting man because 3 months later, he learned that there was another asset…approximately $40,000 worth of CDs that the decedent, Frank’s mother, never mentioned.  Because the designated beneficiary was the decedent’s husband (who died a year earlier), the proceeds were now part of her estate and required probate.

The CDs were at the same bank where the checking account was held, but the bank representatives never told Frank about them.

Why not?

Because Frank had no authority to inquire about other assets at the bank and the bank reps had no legal authority to discuss other accounts with Frank – unless – he was the appointed PR!

Coming full (vicious) circle, recall that Frank chose summary administration and as a result, he was not appointed PR, which limited his ability to inquire about other assets.

So what now?

Luckily, all we had to do was amend the summary administration pleadings to reflect the CD’s and reopen the case briefly.  But what if there are more assets mom didn’t tell us about?  What if Frank wanted to do some more digging?

Florida probate rules allow a petitioner to convert a summary administration into a formal administration if need arises, but I’m not going to sugar coat it, amending pleadings and converting case types takes time and can be frustrating.

Other reasons summary administration might not be best:

• The decedent’s assets are known, but there is a wrongful death lawsuit in the works which may require an appointed PR to prosecute the case (as a representative of the decedent’s estate.)
• There might be Federal Tax liens (IRS) or back taxes owed (the IRS can clean out an estate in a heartbeat), and an appointed PR needs to negotiate with big brother
• There are lots of creditors who will undoubtedly require a formal accounting in order to even consider negotiating a debt settlement – formal accountings are an element of formal administration only
• A property is in foreclosure and an appointed PR is necessary to discuss alternatives with the bank
• There are rent payments which need to be deposited asap (before those tenants think they are living rent-free!)

There are other applicable situations which warrant a formal administration but the point is clear – every case is different.

Yep, no matter how simple you think it is.

Sidebar:  If I had a dollar for every time a prospective client told me how easy and simple their probate was going to be…

When you’re ready to talk to an attorney, check that, a Florida Probate attorney, about your matter, be prepared with to list all of the assets and discuss all of the variables that might help determine the best type of probate administration to choose.

[podcast]http://weprobateflorida.com/podcasts/do-i-have-to-probate-the-dog.mp3[/podcast]

I don’t get a whole lot of questions about probating Sparky or Mr. Wigglesworth but make no mistake, pets are considered personal property and theoretically could be subject to probate. Certainly Florida probate courts have encountered animals in probate, but domestic house pets are often overlooked.

The thing about pets, particularly dogs or cats, is that while animal registration is indicative of ownership, there isn’t a whole heck of alot of regulation regarding the sale or transfer of pets.  Ever buy a puppy from a breeder without papers?  You probably didn’t go out of your way to “title” the little bugger did you?

Unless the decedent had a prize winning line of Weimaraners and there’s a fight over who inherits the next litter, it’s unlikely probate would serve any real purpose.

As a dog lover myself, I hope that many of you are making arrangements, informal or otherwise, for the care of your pets in the event of your disability or death.

On the other hand, if you encounter pets of a decedent, please do everything in your power to find a suitable home.  If you can’t, please call the local branch of the Florida Humane Society.

There seems to be a pattern developing lately where clients (and tire kickers) are apparently paying creditors out of pocket – that is – they are making say, credit card payments on behalf of the decedent before probate has even started!

I can’t be sure if they were coerced by a collections agent or if they just feel some “moral” obligation (because until the estate is open, there is certainly no legal obligation.)

Let’s boil it down shall we?

Why you should probably pay the bill before probate is open:

1. You co-signed for the debt (personal loan, car note, mortgage)
2. It’s secured debt and the collateral is the house, car or some other asset you don’t want foreclosed or repossessed.
3. Electric bill to keep the lights on (so the fridge doesn’t shut off or the septic tank doesn’t back up before you probate the house.)
4. The debt is very small and eliminating it now will speed you through probate.
5. There is a gun firmly pressed against your temple.

Otherwise, don’t pay the bill!

You’ll have to deal with estate creditors once the probate has started anyway. Creditors’ claims can only be satisfied from non-exempt assets.

One last note:  A claim cannot be filed in an estate if the probate has not yet started! << Read this again!

Bonus video is Dave Ramsey’s take on credit cards in general.  Has nothing to do with estate debt, just some straight talk about credit card debt.

I have spent countless hours on any given week hearing about what the evil stepmother, wicked stepsister, deadbeat father and estranged spouse did to be undeserving of an inheritance.

My response has always been the same. “Tough cookies”

• Florida Probate law does not care if your sister never visited mom at the nursing home.
• Florida Probate law does not care if your homeless brother never helped pay taxes on dad’s vacant lot.
• Florida Probate law does not care if your dad married a golddigger who flew to Vegas the day after he died to find a new trust fund husband.

Call her cold, callous … even a bit harsh.  Lady justice will not be moved by your story or be persuaded to change or modify Florida probate laws, no matter how much more you think you deserve. (I didn’t write these laws!)

What’s that you say?

“But that’s the way mom would have wanted it!”

Prove it. Show me the Will. No, not the letter she wrote or the post-it note she scribbled on.   The properly executed and Florida compliant Last Will and Testament.

“It’s not about the money.  It’s about the principle.”

In that case, do you have the money to defend your principles? You’re going to needs lots of it!

In the probate world, there are only 2 ways to die:  Testate or Intestate.

If you die testate, then you died with a Will.  Intestate = No Will.

Without a Will, intestate laws kick in.

Trust me when I say that there is no Florida probate statute that discusses distributions for the “good” son.

Have I beat the horse dead yet?

Here’s my point: In probate administration, it should be very clear what each and every beneficiary is entilted to inherit, either according to the decedent’s Last Will and Testament or the Florida laws of intestacy.  If beneficiaries fight, prepare for litigation or at the very least, extraordinary attorneys’ fees which could have been avoided if everyone would just get on the same page.

It’s not the end of the world.  Get through probate amicably and then get on with your lives.

Note to those of you looking for a Florida Probate Lawyer:

If a fight is brewing, many attorneys will either see dollar $igns or will run from the chaos.  I do NOT take cases if the heirs are fighting. I don’t care for bickering heirs.  Please get on the same page and play nice or find a Florida probate litigation attorney and prepare to spend 5 figures just to get the case moving.

If you need inspiration to play nice, check out the video at the top left of this page!

If you’re ready for a painless and affordable probate experience, make nice with the other heirs and then, contact me!

One of the biggest mistakes you can make as both the personal representative of the estate or as a Florida probate attorney, is reading the will too quickly or not reading it at all!

I just completed a probate case for a client who had previously sought the services of another probate attorney. Unfortunately for both lawyer and client, they missed a crucial four word phrase in a very unassuming clause of the will which led to all kinds of havoc and chaos. I did manage to unravel the mess, but it wasn’t fun.

When I first talked to this client during our initial phone consultation, she did not have a lot of nice things to say about the attorney. That’s pretty typical for any client that has abandoned his or her previous attorney, but when I found out about the oversight in the will, frankly I felt bad for the previous attorney. It was a mistake anyone could’ve made.

Our office policy is to not take any cases if we have not yet thoroughly reviewed the last will of the decedent.

If and when you call our office, be prepared to discuss the finer points of the last will and testament of the decedent, if one exists. If you don’t have it handy during our consultation, you’ll be asked at some point to fax it to our office, or scan and email it to us. No attorney should take a probate case if he or she hasn’t actually read the will.

Surprises can be expensive and time-consuming for everyone.

That IS a problem.

Under Florida Statutes, the custodian of the Will must deposit it with the clerk of the courts in the county where the decedent resided within ten (10) days of the date of death. This is the legislature’s attempt to keep people from losing it! The reality is that many Wills don’t make it to the clerk’s office until someone wants to put it through probate. Additionally, note that while a decedent may have left an estate in Florida (i.e. owning some land in Florida) but did not actually last reside in Florida (domicile), then the Will should be deposited in the appropriate (out of state) county.

Can’t find the Will? Here are some ideas:

1. Many clients choose to have their Wills held by the attorneys who prepared them. Look on the copy of the Will that you have to see if there’s any indication of who prepared it. If you find an attorney’s name, call them (you can look up Florida attorneys here. Additionally, if the Will was prepared out of state, try Terry Berger’s handy site which will help you look up out of state attorneys.
2. Check to see if there is any indication that the decedent had a safety deposit box wherever he or she did their banking. Note that some banks keep this information very confidential.
3. Going through papers in the home office? Always check unmarked folders or envelopes. I suppose some decedent’s thought it would be genius to put the Will in stealth packaging so no one could find it and doctor it!
4. Check the clerks’ office in any county that the decedent ever lived in. Some counties around the country allow you to deposit the Will for safekeeping with the clerk’s registry.
5. If the decedent last lived in an assisted living facility or nursing home, check with whoever is in charge of leftover inventory when the decedent’s room was cleared out.
6. As a last ditch effort, check the home of EVERY child, parent or sibling of the decedent. Wills turn up in the strangest places and it can’t hurt to look!

If any of these tips leads to your successful location of the Will, leave a comment and thank us! (Then contact us and we’ll help you with the probate.