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Do I Have to Open a Probate Estate?


When a loved one dies, there are many issues to resolve. There are funeral services, church services, final arrangements for burial or cremation, and in many cases, property to be inventoried. For grieving families, going through a loved one’s things after death can be a troubling and uncomfortable situation. No doubt, someone will probably mention probate. But what exactly is probate, and is it necessary?

What is Probate?

Probate is a formal judicial proceeding during which a court oversees the process of gathering assets, determining debts, and distributing the property of a decedent. In Florida, the Probate Code controls all aspects of the process, from the initial filing of a will to the distribution of assets when there is no will. While it is a complex area of law, an experienced Jacksonville probate lawyer can make things much more manageable for those who must go through the process.

Is Probate Always Necessary?

The short answer is no. In fact, most estates do not have to go through probate. This is because Florida law technically only requires probate when a person dies with more assets than those qualifying as exempt. Sadly, most people do not die with significant assets. However, it is important to remember that a home, a car, and a bank account are not the only things that qualify as assets.

The law provides a detailed list of what is exempt from creditors, but if the decedent dies with only exempt assets, then there is generally no need to probate the estate. There can, of course, be exceptions. For instance, even a small estate with almost no assets could require formal probate if a lawsuit is to filed relating to the decedent’s injuries or death. Likewise, an estate may need to be opened in order to investigate the existence of suspected assets.

What About Summary Administration?

Under Fla. Stat. 735.201(2), an estate may be administered through a streamlined process called “summary administration.” This is when there are more than just exempt assets, but less than $75,000 in assets. However, this is only permitted in certain situations. First, after subtracting any exempt assets, there must be no more than $75,000 in assets or the decedent has been dead for over two years. Second, this can only be done if there is no will or, if there is a will, the will does not prohibit it in some way.

Is Summary Administration Easier or Cheaper?

Sometimes. However, many people begin the probate process thinking that their loved one only had exempt assets, only to learn later that due to home title issues or unknown bank accounts or retirement accounts, there are actually far more assets than expected. In other situations, people begin with summary administration, and later learn about other reasons that the estate must be converted to a traditional probate matter. This can be costly, both in court costs and extra attorney fees.

In fact, in Duval County, a formal administration costs $400 to file, while a summary administration of an estate with over $1,000 in assets costs $345. Therefore, in many cases, the cost difference is small. Switching from summary to formal administration later, however, can cost quite a lot if there are mistakes to correct.

Therefore, it is best to consult with an experienced probate attorney from the start to avoid wasting time or creating costly headaches down the road.

Finding an Experienced Probate Lawyer in Jacksonville

In Jacksonville and the surrounding areas, the Judy-Ann Smith Law Firm is available to answer questions and guide families through what can often be one of the most difficult times in their lives. Call (904) 562-1369 for a consultation today.