Estates: My deceased family member had little assets, is it worth administering the estate?

Maybe.  If the decedent had minimal personal property (cash) and many creditors it may appear fruitless to administer the estate, however if real estate is involved there may be an unattachable pot of gold.

If decedent maintained a homestead in Florida with equity, the equity passes to heirs free and clear of creditor claims (except real estate creditors, i.e. mortgagees, etc...).

If you are an "heir" of decedent your attorney may petition the court to establish homestead of the real estate and if granted, the order will cause title to vest in the "next of kin" free of claims.  (See below to determine if you are an "heir" of decedent.)  See Article X, Section 4(b) of the Florida Constitution

The decedent's homestead is not an asset of the probate estate however it is frequently controlled and preserved by the Personal Representative for the beneficiaries during administration of the estate.  Typically, a creditor publication is required prior to a probate judge granting a Petition to Establish Homestead.

In summary, should you administer the estate?

1. Is the real estate the decedent's homestead?
2. Is there equity in the homestead?

If the answers are "yes" and "yes", then yes!

Call NEILSON LAW, PA regarding a Petition to Establish Homestead.

Who is an "heir"?
Section 731.201(18) of Florida Statutes defines heirs or heirs at law as “those persons ... who are entitled under the statutes of intestate succession to the property of a decedent.” 

Who receives under intestate succession?
(1) To the descendants of the decedent.

(2) If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:

(a) To the grandfather and grandmother equally, or to the survivor of them.

(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

F.S. 732.103

How do I transfer Florida Real Estate of Deceased Non-Resident?

Unfortunately, probate. 

There are various procedures to transfer a decedent's Florida real estate to the surviving spouse, beneficiaries of domicile estate depending on: (1) the value of the real estate, (2) the amount of time since death, and (3) if domiciliary proceedings have occurred.  Florida law provides simplified probate in several incidences of ancillary administration. 

If the decedent died with a will and less than $50,000.00 in Florida assets, the foreign Personal Representative (appointed in the state of domicile) may petition the Florida court to admit the foreign will to probate in Florida with a authenticated transcript of the domicile probate record.  Publication to creditors is optional. F.S. 734.1025

Ancillary summary administration is available for intestate estates (no will) if the Florida assets are less than $75,000.00. Florida Probate Rule 5.470 states:

(a) Petition. The petition for ancillary letters shall include an authenticated copy of so much of the domiciliary proceedings as will show:

(1) for a testate estate the will, petition for probate, order admitting the will to probate, and authority of the personal representative; or

(2) for an intestate estate the petition for administration and authority of the personal representative to act.

(b) Notice. Before ancillary letters shall be issued to any person, formal notice shall be given to:

(1) all known persons qualified to act as ancillary personal representative and whose entitlement to preference of appointment is equal to or greater than petitioner's and who have not waived notice or joined in the petition; and

(2) all domiciliary personal representatives who have not waived notice or joined in the petition.

(c) Probate of Will. On filing the authenticated copy of a will, the court shall determine whether the will complies with Florida law to entitle it to probate. If it does comply, the court shall admit the will to probate.

 

Call Neilson Law today to determine the right probate procedure!

Is it possible to Probate a COPY of a Will without the ORIGINAL in Florida?

Yes.  Florida law presumes that a will has been lost or destroyed if the original is not located, however that presumption may be overcome.  Florida Statutes provide a procedure for probate of a lost or destroyed will.  Section 773.207 states:

"Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness."

 

Florida Probate Rule 5.510 governs the procedure for probate of a lost or destroyed will.  

Rule 5.510. Establishment and Probate of Lost or Destroyed Will

(a) Proceeding. The establishment and probate of a lost or destroyed will shall be in one proceeding.

(b) Petition. The petition, in addition to reciting information required under these rules for petition for administration, shall include a statement of the facts constituting grounds on which relief is sought, and a statement of the contents of the will or, if available, a copy of the will.

(c) Testimony. The testimony of each witness in the proceeding shall be reduced to writing and filed and may be used as evidence in any contest of the will if the witness has died or moved from the state.

(d) Notice. No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised.

(e) Order. The order admitting the will to probate shall state in full its terms and provisions.

 

If you are an interested party in a decedent's estate and you are unable to locate the original will, you may administer the estate with a copy by meeting the Florida statutory requirements.

 

NEILSON LAW, PA