Daily Archives: June 23, 2014

Probate Without Probate?

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Jeff NuckolsProbate Without Probate?

By: Jeffrey R. Nuckols, Esq.

With the exception of the estates of decedents who have planned to avoid probate, most estates in Florida require probate. However, under specific and perhaps narrow circumstances, Florida law provides for disposition of personal property without administration – what one might refer to as “probate without probate.” Fla. Stat. 735.301 (2013).

The statutory provision can be helpful for the survivor of a decedent whose estate consists of so small an amount of personal property as to make probate cost prohibitive. Some modestly-sized estates might also qualify, see Fla. Stat. 735.301(1) (2013), but I will focus here on only the third category of property in Fla. Stat. 735.301(1) (2013). There the statute describes “nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.” Fla. Stat. 735.301(1) (2013).

The other two categories of personal property appearing in the statute are exempt personal property as appears in Fla. Stat. 732.402 (2013) and personal property exempt from the claims of creditors as in the Florida Constitution. Fla. Stat. 735.301(1) (2013). However, the category of personal property that I am discussing here need not be exempt.

So, what property falls into this third category? Always consult an attorney to help you determine whether funeral expenses or medical and hospital expenses fall within the statute’s meaning, but Fla. Stat. 733.707(b) (2013) might provide guidance for that determination for funeral expenses and Fla. Stat. 733.707(d) (2013) for medical and hospital expenses. Fla. Stat. 733.707(b) (2013) describes “[r]easonable funeral, interment, and grave marker expenses, whether paid by a guardian, the personal representative, or any other person, not to exceed the aggregate of $6,000.” Fla. Stat. 733.707(d) (2013) describes “[r]easonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.”

Notice that the statute provides for estates containing only personal property. That means that if the estate contains real property, like a house, that must transfer through the probate process, then the disposition of personal property without administration is not available. Fla. Stat. 735.301(1) (2013).

Why does Florida provide for the disposition of personal property without administration? Well, one reason might be to make it simpler and less costly for an individual who has paid those preferred funeral expenses and medical and hospital expenses to recover those funds from a very small estate.

Nothing in this article should be construed as legal advice or as forming an attorney-client relationship. If you have any questions about your particular situation please do not hesitate to contact Jeffrey R. Nuckols
at (321) 329-5449 ext. 2
for a free telephone consultation.