If you’ve recently lost a loved one, and determined that you must probate their estate, you will have to gather the details of their familial relationships.
Recently there has been a shift in how courts proceed in administration of intestate probate estates. Where the Court did not require an Affidavit of Heirs, they are doing so with more regularity.
Often times, the family members of the decedent are in a unique position to have knowledge of all the decedent’s relatives. This information is crucial because under Florida Statutes if there is no will, relation to the decedent will determine who is entitled to receive property of the decedent.
Information regarding who is related to the decedent is required in probate cases without a will before the court will issue an Order of Summary Administration, Order Determining Exempt Property, Order Determining Homestead Status of Real Property, or Order Appointing Personal Representative. There are several ways to provide this information to the court.
How do you tell a Florida probate court about heirs?
The Petition for Summary Administration is verified, meaning that it must be signed by the person asking to be appointed personal representative or for the order of summary administration. These petitions must include the name and address of the surviving spouse, if any, and all beneficiaries. At the conclusion of each of these petitions the following statement appears “Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.”
Why isn’t a verified pleading good enough for the court?
The court makes the final determination of who is entitled to property of the decedent. Therefore the probate court requires an unequivocal statement as to who is related to the decedent so the court’s ruling is final and definite. The qualifying language “to the best of my knowledge and belief” creates some ambiguity as to whether or not the statement is true, or just that the petitioner believes it to be true. This type of qualified statement is more like a statement of good faith, not that something is a positively true statement. Hall v. Byington, 421 So. 2d 817, 818 (Fla. 4th DCA 1982)
An affidavit of heirs requires the affiant, usually also the petitioner, to make the unequivocal statement that they have personal knowledge of the familial relationships of the decedent. So if the decedent had no will, the petitioner may have to go digging to make sure they have done their due diligence. What constitutes due diligence is complex enough for its own blog post, but it will likely include hiring a company to search for heirs. Some companies require an advance fee deposit of $1600.
That is significantly more than the cost of a will for the average person.
How can I avoid having to do an affidavit of heirs?
These affidavits being required in every intestate estate is relatively new. Until the last year or so, the statement regarding heirs and beneficiaries in the petition was sufficient. Now, if you don’t have a will, the court will require an affidavit of heirs.
You can avoid this necessity by executing a will. This is because under Florida Statutes 733.301 the following priority applies: the person nominated by the will, then the spouse, then the person nominated by a majority in interest of heirs, or the heir nearest in degree. This information is required to be in the petition for administration by the Florida Probate Rules. So if you want to save your family the trouble and expense of having to dig into your family history, you can nominate your personal representative in your will, and that person will be first in line.
Similarly, a Petition for Summary Administration is properly filed under Florida Statutes 735.203 by any beneficiary or person nominated as personal representative in decedent’s will. This means that even if there is a will, the surviving spouse would still have to sign. However, with a will, only the beneficiaries named in the will have to join the petition. If you do not have a will, joinder of all beneficiaries will generally be required. That means without a will the petitioner will have to find and notice all the decedent’s heirs.
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When a person passes away without a will, it can be difficult to marshall all the assets, and to find all the potential heirs and beneficiaries. In addition to the difficulty, it can be very costly to do all of this. A properly executed will can make Florida probate move more quickly and cost significantly less. Our experienced attorneys can help you create a will that will work for you. Contact us today to schedule a free consultation.