Estate administration

General Overview of Estate Administration in Florida

Estate Administration in Florida

• Administration process and typical forms

• Areas recently updated or posing challenges to administration

  • Homestead
  • Elective Share
  • Creditor Claims
  • Fees
    • Attorneys
    • Personal Representatives

General Estate Administration – fairly straightforward & governed by:

• Florida Probate Code, Chapters 731-735 Florida Statutes
• Florida Probate Rules – set forth specific deadlines and time restraints
• Florida Lawyers Support Services – provides standard forms, which may require modification based on issues specific to a particular estate

• Circuit Courts – local rules that apply and must be complied with

  • Bond of Personal Representative, or
  • Restricted depository account.

Many estates are routine and standard forms and regular procedures can be utilized; however, there are some exceptions:

• Issue of Domicile – proper probate jurisdiction based on legal domicile of decedent
• Will Contests – arise when there are multiple Wills and/or changes to Will shortly before death

• Undue Influence – frequently occurs with

  • senior adults,
  • second spouses,
  • caregivers
• Adverse Heirs/Beneficiaries – unable to agree

• Businesses:

  • Running an active business.
  • Selling a business.
  • Insolvent business – may involve bankruptcy court.
• Miscellaneous issues that may arise that do not fit neatly into simple administration.

Preliminary Considerations

• Jurisdiction

  • Florida Constitution grants authority to the Circuit Court to adjudicate rights
  • Person must have died

  • Decedent must have owned property – either real or personal – that cannot be transferred any way other than by administration. Some exceptions include:

    • Assets that pass to a joint tenant as survivor by operation of law,
    • Assets that designate a beneficiary, such as life insurance, annuities or payable upon death accounts,
    • Assets that are held in any trust a decedent may have created prior to death.

Venue – the location where jurisdiction is exercised

• primarily in the County where the decedent was legally domiciled
  • Not always easy to determine,
  • Often contested by various parties,
  • Florida Statute §731.201 equates domicile with usual residence, which is not always easy to determine if a decedent owned multiple residences and frequently divided time between them.

  • In determining domicile, courts will consider:

    • ownership of dwelling, if any
    • homestead exemption on real property
    • automobile registration
    • voter’s registration
    • driver’s license
    • statement as to domicile in Will or Trust
    • bank accounts
    • address on federal tax returns.
• may also be in the county where the decedent owned real property
• may be where a debtor of the decedent is located
• occasionally two different states have administered the estate of a decedent as the primary or domiciliary administration, which can create a conflict as to entitlement of the assets

Objection to Venue

• Can be made by the surviving spouse or heir of the decedent,
• Can be made by any interested party to the estate,
• Can be made by the court if a determination is made that the venue was not proper.