Probate in Florida provides allow the court to use summary procedures in some cases. In our practice area page about the Florida probate processes we describe how an estate can qualify for summary administration. One of the defining characteristics of our firm is that we don’t limit our cases to only the vanilla cases. We’ve gotten to handle some interesting cases. Working the odd cases has given us the opportunity to craft creative solutions for our clients.
This experience has provided us with the insight to guide our clients through the process so they can avoid problems that would otherwise surprise them later. Some estates qualify for summary administration, but also have creditors. If there are no non-exempt assets in the estate the problem can be solved by asking the court to determine the exempt status of the assets and creditors won’t have much of a say.
The key difference between Summary Administration and Formal Administration is the appointment of a Personal Representative. A Personal Representative can marshal assets, pay creditors, and make distributions. This also means that the filing fee will cost more and a bond will likely be required.
Summary Administration With Non-exempt assets
If a small estate that otherwise qualifies for summary administration, but has assets that don’t qualify for any exemptions, the court may require some additional work to make sure the creditors will be paid. The court is concerned if it grants an order of summary administration that complies with Florida Statutes and Florida Probate Rules, the beneficiaries may not pay the creditors, even if the order requires the beneficiaries to make the payments.
One solution is that the court may allow the beneficiaries deposit sufficient assets in the attorney’s trust account to pay the creditors. If it’s a small amount of money, the attorney may agree to this solution. However, there may be more efficient ways to address these types of estates.
In these circumstances, it may be beneficial to skip summary administration in favor of Formal Administration. The practical result is that the personal representative in a formal administration will have the ability to sell assets, pay creditors and distribute assets.
This also means that a notice to creditors must be published as soon as the Personal Representative is appointed so the 90 day creditor period can run. The shortest possible Formal estate would be around 4 months. Summary administration can take longer than 4 months while the court and the probate attorney work out a solution to a creditor problem that could’ve been avoided all together.
Summary Administration When Exempt Property is Encumbered
Another situation that may be better suited for formal administration is when the decedent’s homestead is encumbered by a mortgage. In this case, even if the homestead is the only asset, the mortgage company is entitled to payment. Sometimes the mortgage company will allow some flexibility by not filing a foreclosure action against the estate because the bank understands the difficulties associated with losing a loved one and going through a probate administration.
How does a personal representative help in this situation? The personal representative can ask the court for permission to sell the property. The closing agent should arrange for the mortgage to be satisfied from the proceeds when the property sells. This can help preserve assets for the beneficiaries because the mortgage company will likely require payment of attorney’s fees and costs to sign off on any sale if they have already filed a foreclosure action.
Most firms, ours included, do not include defending a foreclosure action in the cost of administering the estate- there is an additional cost for that.
An experienced Florida probate attorney may help to avoid problems during the probate process.
The last thing you want to do is open probate just for the benefit of the creditors if you don’t have to. Contact us today to schedule a free consultation about you probate issue. Our firm assists clients in probate of small estates, probate of large estates, and probate litigation. At our consultation, we will discuss the issues present with your particular matter, and we will discuss possible courses of action.
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