Although there are various strategies to “avoid” probate anywhere, there are two general situations in which New Hampshire residents may have to deal with probate matters in Florida. Those situations are (a) a NH resident dies owning Florida real estate, typically a vacation residence; and (b) a NH resident has a relative who dies as a Florida resident. In either case, what to do? The following overview might be helpful or informative.
In the first case, it is assumed that initial probate proceedings will be initiated in New Hampshire, making any Florida proceeding “ancillary” probate. In the other case, the probate proceeding in Florida is “plenary.”
Unlike New Hampshire, with its 10 counties, Florida is large, with 67 counties, divided into 20 judicial circuits. With 2 levels of trial courts, probate matters in Florida fall under the jurisdiction of the Circuit Court for the county in which the decedent owned property or in which the decedent died as a permanent resident. Some, but not all, judicial circuits in Florida have established probate divisions, or, alternatively, designated one or more circuit judges to handle probate matters, either exclusively or together with other matters within the court’s jurisdiction.
All probate matters in Florida are handled through the state’s “e-filing” (electronic filing) system. The Florida Bar has developed an extensive set of forms designed to cover almost every conceivable probate matter, the latest set of which number 201 different forms. Those forms are not available online but rather are only available for purchase from one of several authorized vendors, and the forms are typically updated each year. Since the forms have their form numbers and revision dates (typically annual revisions of some but not all forms) on their footers, it is believed that most judges prefer to see the standardized forms utilized, and some judges are known to have bounced submissions using forms that have not been updated by the latest revision.
Assuming that there are no conflicting claims as to a will’s validity or to any petitions for administration, the Florida proceedings will likely be handled on an ex parte basis (meaning one-sided without opposition and matters will be decided by the Judge alone without argument from anyone in opposition) and no in-person hearings will be required.
The Florida nomenclature for what is called an executor or executrix in other states is a “Personal Representative,” commonly referred to as the “PR.” And most (but not all) papers filed in the Florida proceeding are not required to be notarized, although they may expressly state that they are executed under penalties of perjury.
A probate proceeding in Florida is initiated with the filing of a Petition for Administration, typically by the PR named in the will, but if not available for any reason or if there is no will, a PR chosen by a majority in the interest of the beneficiaries of the estate. It is usual and customary for all beneficiaries to execute a joinder in the Petition, including a waiver of formal notice of the proceedings.
In an ancillary administration, “exemplified” copies (bearing certifications by the NH court clerk and applicable judge) of the NH probate proceedings must be filed electronically as well as filed in hard copy with the Florida Court. In any probate proceeding, a scanned copy of the death certificate must be e-filed and the original filed with the Court. And in any probate proceeding in Florida, a copy of the paid funeral bill and a Department of Revenue form attesting to the absence of any liability for estate taxes (if any is not due) must be e-filed.
If the decedent owned Florida real estate, a certified copy of the death certificate and the Department of Revenue form regarding estate taxes should also be recorded in the land records.
If any of the decedent’s Florida real estate is to be sold before the estate administration is closed, there is a procedure for obtaining Court authorization for such a sale, as well as applicable forms.
Florida law requires that the PR either be a Florida resident or, if not a Florida resident, within certain degrees of relationship with the decedent. The PR must designate a Florida resident as its agent for service of process, and if not a resident of the county in which the action is pending, the agent must be a member of The Florida Bar resident anywhere in Florida.
In a testate estate, even if the will waives the requirement of a bond for the PR, it is strictly up to the Court whether to waive the bond or not. In estates in which there are no liquid assets, it would be customary to file a petition to waive bond, joined in by the beneficiaries, whether there is a will or not and irrespective of what the will might say. If there are liquid assets, the Court will likely require the posting of a bond. Some probate judges will allow the use of a restricted bank depository in lieu of a bond if requested.
In an intestate estate, an Affidavit of Heirship will typically be required, setting out a detailed family tree of the decedent.
Proposed orders are drafted by counsel and submitted to the Court, usually in Word™, either using the e-file system, or, in some counties, using a different specialized electronic system for use by the Judges specifically for orders.
After the requirements have been met, the Court will typically issue an order appointing the PR, and, if applicable, admitting the will to probate, as well as issuance of Letters of Administration evidencing the appointment and authority of the PR% to act for the estate. If a bond is required, the Order will state the amount of the bond needed.
Promptly after issuance of Letters, the PR must publish a Notice to Creditors in a newspaper in the relevant county, the first (of two) publication of which starts the running of a 3-month period in which creditors must file claims or be barred. Naturally, there is a procedure for disputing and resolving any claims that might be filed.
Unless expressly waived, the PR must also serve a copy of a Notice of Administration on a variety of persons who may have an interest in the estate; and the PR must also serve a copy of the Notice of Administration on the Florida Agency for Health Care Administration in Tallahassee unless the decedent was under age 55 at death.
The PR is required to file an Inventory within 60 days after issuance of Letters.
After expiration of the creditors’ period and assuming either no claims were filed or any filed claims have been disposed of, and assuming a nontaxable estate, a Petition for Discharge can be filed, usually with broad consents and waivers from all estate beneficiaries.
Waivers from all estate beneficiaries typically waive, among other things, any requirement that the PR must file a formal accounting of all transactions in the estate.
If the decedent owned Florida real estate, it would be appropriate for the PR to execute and record in the land records a release deed (documentary excise tax, essentially the Florida deed transfer tax, of $0.70, plus recording costs, must be paid, irrespective of the value of the property) indicating that the property was not required to be sold to cover administrative expenses and vesting title in the specific beneficiary(ies), before filing the Petition for Discharge.
If the estate was taxable (i.e. liable for federal estate tax) , an IRS Estate Tax Closing Letter and proof of payment of the tax specified in the Closing Letter must be filed with the Court prior to filing the Petition for Discharge. There is no Florida estate or inheritance tax.
Then, assuming no unresolved disputes, the Court would enter an Order of Discharge of the PR and releasing any bond that might have been posted.
So, if things proceed in the regular order and without complications, and if the estate is not taxable, the Florida proceedings can usually be completed in much less than a year.
Finally, there is a much-abbreviated procedure available for estates in which the value of the estate, less the value of property exempt from creditor claims, does not exceed $75,000, or that the decedent has been dead for more than 2 years.
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A little more information about Norm above the normal Grokster bio (below):
Norman was admitted to the Florida Bar in 1970 and the NH Bar in 2008. A Tampa native, he practiced in Miami for approximately 40 years before moving permanently to New Hampshire in 2012. Prior to practicing law in Florida, he served as a trust officer in a Wall Street trust company for nearly 3 years. He has served two terms as a New Hampshire State Representative from Belknap County. He can be contacted at njs@silbersnh.com.
