term "estate" is generally used in
connection with probate administration, to refer
to the administration of property owned in the
decedents own name at the time of his death.
By contrast, property owned by the decedent
as joint tenants with rights of survivorship,
or bank accounts or insurance policies which
name beneficiaries (other than the decedent's
estate) are not probate assets.
The Florida Probate Code requires
full disclosure and notice to interested parties
(including the decedent's creditors) with court
supervision. The probate process provides procedures
for the settlement of controversies between
the interested parties. Depending on the size
of the probate estate and the decedent's date
of death, there are different types of Probate
Administration proceedings available. There
are also different procedures to be used depending
upon whether the decedent died with a valid
Last Will and Testament (Testate), or without
a valid Will (Intestate). Some of the different
probate proceedings are as follows:
F.S. Section 735.301. Disposition without Administration
No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of F.S. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and 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. 732.402. Exempt property shall consist of:
(a) Household furniture, furnishings, and appliances in the decedent's usual place of abode up to a net value of $10,000 as of the date of death.
(b) All automobiles held in the decedent's name and regularly used by the decedent or members of the decedent's immediate family as their personal automobiles.
c) Stanley G. Tate Florida Prepaid College Program contracts purchased and Florida College Savings agreements established under part IV of chapter 1009.
(d) benefits paid pursuant to F.S. 112.1915.(Teachers and school administrators).
F.S. Section 735.201. Summary administration
Summary administration may be had in the administration of either a resident or nonresident decedent's estate, when it appears:
(1) In a testate estate, that the decedent's will does not direct administration as required by chapter 733.
(2) That the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years.
In general, If a probate estate is not eligible for Disposition of Property without Administration or Summary Administration, then it must be formally administered. An estate generally must be formally administered if:
1. The value of the Assets of the estate exceed $75,000.00 or
2. The decedent has been dead for less than two years.
Formal administration requires the appointment of a Personal Representative for the estate, and court hearings for the approval and distribution of payments and claims. Because formal administration is more complex and costly, the other simplified procedures are preferable when an estate qualifies.
734.102. Ancillary Administration
Ancillary Administration is the administration of the estate of a non resident decedent in Florida when the nonresident dies leaving:
(a) Assets in Florida; or
(b) Monies due his estate from Florida residents; or
c) Liens on Florida Property.
A personal representative shall be appointed, and ancillary letters of administration shall be issued to a qualified ancillary personal representative.
Presumably, all or most of the assets owned by the trust and will not be subject to disposition by your will (requiring a probate proceeding). However, the Trustee still has duties under the terms of the Trust and applicable law even without a probate proceeding being required. Among those duties are paying taxes, filing tax returns, marshaling and protecting assets, keeping property insured, making allocations between income and principal beneficiaries, making distributions in accordance with the terms of the trust and dealing with creditors claims. The responsibilities and powers of the trustee(s) are first described in the trust instrument. All trust instruments do not contain the same powers, so the trustee does have to pay attention to the language in your trust to be certain of the trustee's authority and options. Some of the trust provisions reflect existing trust law, while others are included because they suit you and may supersede such existing rules for trusts.
Remember, a Trustee is a fiduciary, with a responsibility to perform his/her duties in a competent manner, and comply with all applicable laws. Notwithstanding that a probate proceeding may not be required, a Trustee who is negligent in his/her duties can incur substantial liability and quickly find themself before a judge in a court proceeding. It is every bit as important for a Trustee to have competent legal counsel, as it is for a personal representative in a probate proceeding.