The average probate process can take up to two years of stress, paperwork, and legal fees. But in Florida there may be simpler options through a Small Estate Affidavit. This document may allow one to speed up, or even sidestep, the lengthy probate process, making it easier for heirs and beneficiaries to receive a decedent’s assets.
In Florida, Small Estate Affidavits are not an instrument to avoid probate court altogether. Rather, they are a requirement to access either of Florida’s two quicker probate processes called Summary Administration and Disposition Without Administration. These are only available for estates with values below certain thresholds.
Don’t get stuck and make the asset transfer process more difficult for your loved ones. Contact William Roof to schedule a consultation and avoid probate complications.
What is a Small Estate Affidavit?
In Florida, a Small Estate Affidavit is a legal document that helps a person claim a deceased individual’s assets without going through the full probate process called Formal Administration. The Small Estate Affidavit is used to obtain court authority pursue either Summary Administration or Disposition Without Administration of a decedent’s estate. The Small Estate Affidavit is used when the estate is considered “small,” which typically means the total value of the estate is below the thresholds set forth under Florida law.
What is Summary Administration?
This is simplified probate process that can be used in limited circumstances. In order to use this process, the deceased must have passed away over two years ago or the estate must be worth less than $75,000. While Summary Administration is not available if the decedent had a will requiring Formal Administration, Summary Administration generally offers a shorter and less costly probate process.
By using a Small Estate Affidavit to pursue Summary Administration, the heir can avoid the lengthier and costlier Formal Administration probate process, which often necessitates court appearances, asset accountings, and attorney involvement. Summary Administrations helps in distributing the assets of the deceased more efficiently to heirs and beneficiaries.
Here are the situations where a Small Estate Affidavit and Summary Administration can be one’s best option, saving time and effort in settling an estate:
- When the deceased has no real property or has real property that does not cause the estate to exceed the threshold value for Summary Administration.
- When the total value of the estate is below the specified financial threshold for a given state, as mentioned above.
- The deceased died without a will, and the estate’s assets are worth marginally more than the estate’s debts.
What is Disposition of Personal Property Without Administration?
It is possible to obtain court authority to distribute a deceased person’s assets without a probate administration of any kind. This is called a Disposition of Personal Property Without Administration, and is typically permitted when the deceased leaves behind:
- No real property, and
- Non-exempt personal property that is valued less than the sum of:
- The deceased’s preferred funeral expenses, and
- Any reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.
Disposition of Personal Property Without Administration permits an heir or beneficiary to use a Small Estate Affidavit to petition the court to authorize the transfer of the decedent’s personal property assets without administration. This process often aids a family member who paid the deceased’s final expenses to be reimbursed.
Non-Probate Assets
It is important to remember that not all assets become property of the estate for probate purposes. For example, Florida law exempts real property determined to be homestead property from probate, as well as from probate creditors. Florida law may also exempt a certain amount of home furnishings and other personal property from creditors as well.
Forms of property that may be exempt from probate include:
- Homestead Real Property
- Life Insurance Proceeds
- Jointly Owned Property
- Retirement or Investment Accounts
- Revocable Trusts
How to Handle a Small Estate in Florida
To determine whether when may settle an estate of a lesser size via a Small Estate Affidavit, one must consider at least the following:
- Summary Administration:
- Whether the estate’s net probate value less than $75,000.
- Whether the decedent pass away more than two years ago.
- Whether the decedent had a will directing a Formal Probate Administration.
- Disposition Without Administration:
- Whether the deceased left behind real property.
- Whether the deceased left behind non-exempt personal property with a total value less than the deceased’s funeral expenses and last 60 days of medical expenses.
Both of these processes require filing a petition with the court to initiate. Here’s a generalized outline for these processes:
- Step 1: Determine the value and type of the decedent’s assets and debts to see if either a Summary Administration or Disposition Without Administration could be approved based on the criteria above.
- Step 2: Obtain and fill out the necessary paperwork for the applicable process. This may include a petition for Summary Administration or a Disposition of Personal Property Without Administration form.
- Step 3: Submit the completed forms to the court along with any required supporting documentation such as death certificates, estate inventory, notices, etc.
- Step 4: Notify other potential heirs and creditors as required by Florida law.
- Step 5: Await the court’s decision and follow any further instructions provided by the court to finalize the estate’s disposition.
The precise steps might change based on the law, the estate’s particular details, and the local court’s practices. It is recommended to consult with a probate attorney to fully understand the requirements and outcomes of these procedures in Florida.
Cost of Handling a Small Estate in Florida: What to Expect
When it comes to settling an estate, cost is often a significant factor. Especially in Florida, the expenses associated with administration of an estate can vary widely. Factors can include the complexity of the estate, the fees for legal advice, and the charges for notarization and court filings.
Factors Affecting the Cost
- Drafting the Affidavit: The cost of drafting can differ based on the lawyer’s fees and the intricacies involved in your case.
- Notarization: A notary may charge a fee to authenticate the document, which can add to your overall cost.
- Filing Fees: Clerk of court in the jurisdiction of your probate action will charge filing fees, usually through the online electronic filing portal.
- Legal Consultation: While not mandatory, legal advice is highly recommended and can add to the cost.
Why You Might Need Legal Advice for a Summary Administration or Small Estate Affidavit
You might be wondering if you really need a lawyer to help with a Summary Administration or Small Estate Affidavit. Let’s talk about why getting legal advice can make a big difference:
- Eligibility Assessment: Not all estates qualify for a Summary Administration or Disposition Without Administration via Small Estate Affidavit. A lawyer can help assess whether your case meets the criteria, saving you from potential legal complications down the line.
- Document Preparation: Aside from preparing a number of legal documents, you’ll likely need a certified copy of the decedent’s death certificate, information on bank accounts, and possibly social security numbers. An attorney can ensure that these documents are notarized by a notary public and submitted correctly.
- Debt Settlement: The decedent’s debts and liabilities, including any liens on real property, likely must be settled before assets are distributed. Your lawyer can help you interact with creditors and financial institutions like banks or credit unions to clear these debts.
Risks of Proceeding Without Legal Guidance:
Let’s explore what could go wrong if you try to go it alone without any legal help:
- Costly Mistakes: Incorrectly filing Small Estate Affidavits or other legal documents with the probate court can result in delays and could even lead to formal probate administration, thereby increasing the time and cost involved in settling the decedent’s estate.
- Debt Acknowledgment: Failure to correctly handle the decedent’s debts could result in penalties.
- Conflict Resolution: Disputes can arise, especially if the decedent’s will is contested or if there are multiple claimants to estate assets. Without the guidance of a probate attorney, these disputes can escalate, causing emotional and financial turmoil.
Frequently Asked Questions about Small Estate Affidavit
Do I Need an Attorney to Prepare a Small Estate Affidavit?
Having an attorney is not a must, but it can be really helpful. A lawyer can make sure you’re doing everything right and can help if things get complicated.
What Is a Small Estate Affidavit and When Should I Use It?
A Small Estate Affidavit is a legal form you fill out to claim someone’s property after they’ve passed away, using either the Summary Administration or Disposition Without Administration probate processes. Whether the deceased person’s property may be transferred through Summary Administration or Disposition Without Administration depends on certain factors mentioned above.
What Documents Do I Need to File a Small Estate Affidavit?
Generally, you need proof of identity, a certified copy of the death certificate, a copy of all paid funeral bills (if the decedent has been dead for less than two years), the original last will and testament (if there is one), a probate court Petition, and more. Additionally, documents like bank statements, investment statements, and a list of all deceased-owned properties will likely be necessary at some point.
Get Legal Help Now
Handling an estate can be tricky and stressful. Even a small mistake can cause big problems, costing you time and money. That’s why it’s so important to get help. You can make the process much easier with the right advice.
Why risk making a mistake? Make things easier for your family and yourself. Contact William Roof today for advice you can trust.
The contents of this article are not comprehensive, they provide only a general overview of the subject matter discussed. This article does not establish a client-attorney relationship with the reader, and no legal decisions should be made based on the article’s contents. Because every legal matter arises under unique facts specific to the client, no legal decision should be made without consulting a licensed attorney.
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