How to Administer a Small Estate in Florida When the Deceased Left No Will

When a person leaves no Will, their heirs may be unsure of how to proceed when it comes to probate. Florida law provides for these Estates with no Wills, i.e. estates of intestate decedents. And a recent addition to the law actually makes it easier for heirs of smaller estates to administer their loved one’s property without the need to go through the formal probate process.

What Is Considered a Small Intestate Estate?

In 2020, the Florida legislature created a new statute, Section 735.304. Under this section, the beneficiary of an intestate decedent can administer the estate simply by filing an affidavit with the appropriate probate Court. This affidavit process is only available, however, if the estate only consists of the following assets:

• Personal property–i.e., not real estate–exempt from creditor claims under Florida law.
• Personal property exempt from creditor claims under the Florida Constitution, which includes up to $1,000 under Article X, Section 4;
• Non-exempt personal property of up to $10,000, which must include any preferred funeral expenses and any necessary medical bills incurred by the decedent during the last 60 days of their final illness.

Keep in mind, there are many types of non-probate assets that a person may own that do qualify as part of their estate. For example, life insurance policies that name a beneficiary other than the estate are a non-probate asset. The same is true of a pension plan or other asset where a person is named as the beneficiary. Trust assets are also excluded from a probate estate. So if an intestate decedent’s only assets are non-probate in nature, it is not even necessary to file a small estate affidavit as described in Section 735.304. 

The Process of Filing a Small Affidavit?

Any “heir at law” can file a small estate affidavit under Section 735.304. An heir is a person who is entitled to inherit in the absence of a will under Florida’s intestacy law. Generally, this is the next of kin. If the decedent was married, for instance, their spouse and children would be the heirs at law.

Now, the affidavit process is only available when the decedent died more than a year prior to filing and no other probate proceeding is then pending. The affidavit itself must be signed by the surviving spouse, if one exists, and any other heirs at law. The person filing the affidavit must also first make a “diligent search” for any potential creditors–that is, anyone whom the decedent owed money to at the time of their death. If there are creditors who have a valid claim, they must consent to the filing of the affidavit as well.

Once the affidavit is filed and approved by the Court, that is sufficient to authorize the distribution of the decedent’s probate assets to their heirs at law (and creditors, if any need to be paid). No further probate administration is necessary.

If you have additional questions about the probate process, or you are involved in a dispute that requires the assistance of a qualified Pompano Beach estate and trust litigation lawyer, contact Mark R. Manceri, P.A., Attorney at Law, today to schedule a consultation.

Source:

flsenate.gov/Laws/Statutes/2020/0735.304