Article of administration from the Court
I am told by the writer of the trust that I do not; that I only need Small Estate Affidavit because estate is less than 75K.
What is correct?
5 attorney answers
If the bank account is titled to the Trust, you will not need anything from the probate court. If the account or accounts are in the name of decedent (never transferred to the trust), Florida does not have a "Small Estate Affidavit" procedure (which is an option in some other states. Instead we have a procedure for small estates (non-exempt assets of $75,000 or less, plus exempt assets) called Summary Administration. The bank is actually requesting "Letters of Administration", not Articles of Administration, which is a court order issued when a Formal Administration is opened. If the estate value (non-trust assets) is less than $75,000, and the decedent has no debts or creditors, Formal Administration is most likely more involved and more expensive than necessary. even thought the Letters of Administration will give you immediate access to the funds in the bank account. All of this illustrates why, as much as you'd like to obtain all of your answers through this type of forum, rather than consulting with an attorney, it would be best to sit down with an attorney to review the estate and your options. While it is unclear who the person you refer to as "the writer of the trust" is, if he/she used the term "Small Estate Affidavit", that person is not a Florida attorney and that is part of the problem. A Florida attorney preparing a trust and working with the decedent on it would have taken steps (or at least advised the decedent) to avoid this type of post-death issue that arises when a trust is created, but not all assets are transferred to the trust (also known as funding the trust). An experienced probate attorney will sort this out with you at a consultation and provide you with the options available to deal the the bank and the bank accounts..
I hope you found this response to provide some help in your effort to resolve a legal issue. This response shall not be considered rendering legal advice but instead a general response to a general question. This is my sole response to your questions in this forum, as it is a donation of time. Subsequent questions by comment or private email, requesting am additional response in this forum will not be responded to. Avvo is a wonderful resource but nothing can substitute for an in-depth consultation face-to-face with a lawyer. The response shall not be deemed to create an attorney-client relationship, nor shall it create an obligation on the part of the attorney to respond to further inquiry from the questioner. The purpose of this forum is to provide general advice both for the person asking the question and others who might have similar questions.
In Florida, "Letters of Administration" are only provided in Formal Probate, it is often the case and incorrectly so that banks and other financial institutions demand "Letters of Administration" in all instances whether correctly or not because something is bouncing around in their head that always has them default to Letters of Administration, and incorrectly so. In Florida, if the probate estate is worth less than $75,000 it is often possible to accomplish the same goal through the Order of Summary Administration if correctly drafted. In reality, it is often just simpler and potentially needed that a Formal Probate is filed based on the specific circumstances of the probate estate and or the asset that is problematic. I can say, many banks are becoming increasingly problematic due to fraud concerns, confusion or just not understanding the probate process. It will be necessary for a Florida Probate Attorney to review the Trust/Will and estate related accountants or assets that need to be probated, until then you are likely dealing with general responses and a lot of guessing. I would encourage you to speak with Florida Probate Attorney as they are the only ones able to properly advise and direct you with proper answers and options, definitely not the bank or other financial institution as they tend to get it wrong nearly always.
There are basically 2 types of probate cases. There is a formal administration. This is for probate assets in excess of $75,000. In these cases, Letters of Administration are issued. Then there is the summary administration. These cases are if there are less than $75,000 in probate assets or if the decedent died more than 2 years ago (no matter the amount of probate assets). With this case, you would obtain an Order of Summary Administration to give to the bank.
Probate assets are assets that were owned by the decedent as an individual with no joint owner nor named beneficiaries. It would also include real estate that is owned as tenants in common (not husband & wife or joint tenants).
I would suggest that you contact an attorney in Florida who handles probate matters and discuss the matter in more detail with him or her.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in MI and FL so advice in any other jurisdiction is strictly general advice. You seek more specific advice from an attorney licensed in your jurisdiction.
First, to ensure that you receive more direct responses, I changed the area of law for you to Probate. Possibly both, in answer to your question. It really depends on how the asset is titled. I suggest that you take the Will, the trust and the information regarding the bank account to an attorney to help determine which path is best for you. The bank has its own regulations and may requirecertain Court documents, if the asset is not already titled in the name of the Trust. My regrets for all of the frustration this might cause you and best wishes in your endeavors!
If you found this response helpful, please mark it as "Best Answer". The general answer provided herein cannot substitute for personalized attention to your specific legal concerns. Also, providing a response to your question does not constitute in any manner whatsoever a client-attorney relationship or privilege between us. The hiring of a lawyer is an important decision and should not be based solely upon advertisements or the like. Before you decide which attorney to retain, please ask for free written information about qualifications and experience.