Probate Administration & Estate Settlement

Probate Administration & Estate Settlement in Florida

When a Florida resident dies, their assets generally cannot be transferred to heirs or beneficiaries until the estate goes through some form of administration. Probate is the court-supervised process by which a decedent’s debts are paid, ownership of titled property is transferred, and the wishes expressed in a valid will (or, absent a will, the rules of intestate succession) are carried out. While Florida’s probate system is less expensive and adversarial than many states, it is still procedural, deadline-driven, and unforgiving of mistakes.

John Montague, Esq. represents personal representatives, heirs, beneficiaries, and creditors throughout Florida probate proceedings — from filing the initial petition to the final discharge. With offices in Fernandina Beach and Coral Gables, the firm handles formal administrations, summary administrations, ancillary probates for out-of-state decedents owning Florida property, and contested matters that require litigation skill alongside administrative competence.

The Three Florida Probate Pathways

Not every estate must follow the same process. Florida law offers three pathways, and selecting the right one materially affects cost, speed, and risk:

• Formal Administration — The default process for estates exceeding $75,000 in non-exempt assets, or where the decedent has been deceased less than two years and a personal representative is needed to administer property, deal with creditors, file tax returns, and litigate disputes.
• Summary Administration — Available when the estate’s non-exempt value is under $75,000 or when the decedent has been deceased more than two years (Fla. Stat. § 735.201). Faster and less expensive, but no personal representative is appointed, which limits what can be done.
• Disposition Without Administration — A narrow procedure for very small estates where the only assets are exempt property and reimbursement for last-illness medical and funeral expenses.

Choosing the wrong pathway — or filing under one when the facts demand another — leads to wasted fees and dismissed petitions. A short consultation at the outset usually pays for itself many times over.

Key Legal Issues in Probate Administration

Personal Representative Appointment & Qualification

Florida imposes specific qualifications on personal representatives: a Florida resident, or a non-resident who is a spouse, sibling, parent, child, or close relative of the decedent (Fla. Stat. § 733.304). Convicted felons and persons under 18 cannot serve. The personal representative must post a bond unless the will waives it, and must retain Florida counsel except in rare unrepresented cases. The wrong nominee — or a contested appointment — can stall an estate for months.

Creditor Claims & the 90-Day Notice Period

Florida probate gives creditors a defined window to assert claims: typically 90 days from publication of the Notice to Creditors, or 30 days from receipt of actual notice, whichever is later (Fla. Stat. § 733.702). Failure to follow the notice protocol can leave the estate exposed to claims years after closing. Conversely, valid creditor claims must be paid in statutory order before beneficiaries see a dime. Negotiating, objecting to, or settling claims is a recurring task in formal administration.

Homestead, Exempt Property & the Elective Share

Florida’s constitutional homestead protections under Article X, § 4 are unique. A homestead generally passes outside the probate estate and is shielded from most creditors, but its descent is restricted when a surviving spouse and minor children exist. The elective share (Fla. Stat. § 732.201 et seq.) gives a surviving spouse 30% of the elective estate regardless of the will’s terms unless validly waived. These doctrines drive many probate disputes.

Tax Filings & Income During Administration

Estates often must file a final federal income tax return for the decedent (Form 1040), one or more fiduciary income tax returns (Form 1041) during administration, and, for larger estates, a federal estate tax return (Form 706). Income generated during administration — rental property, business operations, investment portfolios — is taxed at the estate level until distributed. John’s accounting background from Stetson University and tax-focused legal training translate into sharper coordination with CPAs and fewer mistakes on filings that the IRS scrutinizes closely.

Will Contests & Beneficiary Disputes

Probate is also a litigation forum. Will contests based on lack of capacity, undue influence, fraud, or improper execution are filed in the same circuit court that supervises the administration. Disputes over personal representative compensation, accountings, distributions, and beneficiary status frequently arise. Handling administration with potential litigation in mind — preserving evidence, documenting decisions, and communicating in writing — reduces exposure even when contests do erupt.

Practical Guidance: How a Florida Probate Unfolds

A typical formal administration runs six to twelve months for an uncontested estate; complex or litigated estates can run longer. The general arc:

1. Locate the original will, death certificate, and asset inventory; meet with counsel to choose the right pathway.
2. File the Petition for Administration in the circuit court of the decedent’s domicile; obtain Letters of Administration appointing the personal representative.
3. Publish and serve the Notice to Creditors; identify and serve known creditors.
4. Marshal estate assets — bank, brokerage, real estate, business interests, personal property — and prepare an inventory.
5. Address creditor claims, sell assets if needed for liquidity, and file required tax returns.
6. Prepare a final accounting and proposed plan of distribution; serve beneficiaries.
7. Distribute assets, file the petition for discharge, and close the estate.

Communication with beneficiaries throughout this process — even when not legally required — is the single biggest predictor of whether an estate closes peacefully or dissolves into litigation.

Frequently Asked Questions

How long does Florida probate take?

Summary administration can close in 60–90 days when the file is clean. Formal administration generally requires at least six months because of the creditor period and tax filings, with most uncontested estates closing in six to twelve months. Contested estates can run two to three years or longer.

What does Florida probate cost?

Costs include filing fees, publication fees, the personal representative’s bond (if required), accounting and tax preparation, and attorney’s fees. Florida’s statutory presumed reasonable attorney’s fees (Fla. Stat. § 733.6171) are a sliding-scale percentage of the estate’s compensable value — many engagements are negotiated below that schedule, particularly for straightforward estates.

Can probate be avoided entirely?

Yes — through revocable living trusts, joint titling, beneficiary designations, transfer-on-death and pay-on-death accounts, and proper homestead planning. The right strategy depends on asset mix, family dynamics, and tax posture. Pre-mortem planning is far cheaper than probate avoidance after the fact.

What if the decedent owned property in Florida but lived elsewhere?

An ancillary probate proceeding will likely be needed in Florida to transfer the Florida-situs real estate, even if the primary probate is administered in the decedent’s home state. Coordinating both jurisdictions early in the process avoids gaps and duplicated work.