Florida Probate Litigation Lawyer Blog

Summary vs. Formal Administration: What Changed on July 1, 2026

October 30, 2026 | by Chepenik Trushin LLP

Florida’s probate laws received a number of updates as of July 1, 2026, and the changes may be good news for many families. Perhaps most significantly, the threshold for conducting a “summary administration” – a more streamlined, often less-expensive form of probate – was raised to include estates valued at up to $150,000.00, thus broadening the availability of this summary procedure.

In Florida, there are two general forms of probate – summary administration and formal administration. Whether one or both of these options are available to a family upon the death of a loved one is determined by two main factors: whether or not the decedent has been deceased for more than two years, and whether or not the value of the decedent’s estate exceeds a certain dollar amount. In a summary administration, an interested person in a deceased person’s estate (e.g., a surviving spouse, child, etc.) files a Petition for Summary Administration, and seeks entry of a court order authorizing the distribution of the decedent’s assets either according to their will or according to Florida’s laws of intestate succession. In this process, no one gets appointed as personal representative, and there typically is no lengthy court proceeding. In a formal administration, one or more persons get appointed as the personal representative of the estate, and are responsible for marshalling the decedent’s assets, arranging for payment of the decedent’s creditors, paying taxes, and otherwise winding up the decedent’s affairs. A summary administration may be open and closed in a matter of days or weeks, whereas a formal administration often lasts months to years. Naturally, summary administrations are often substantially cheaper to conduct than formal administrations. While the nature and extent of a decedent’s assets may militate in favor of a formal administration even when a summary administration is technically available, families do frequently prefer to conduct a summary administration when the circumstances allow to take advantage of the streamlined and less expensive process. Prior to July 1, 2026, if a deceased person had not yet been dead for more than two years, only those estates valued at $75,000 or less were available for summary administration. However, with the change in the law, summary administration is now available for estates valued at $150,000 or less, thus substantially broadening the number of estates that may be administered through a summary procedure.

Doubling that threshold brings substantial benefit to families whose loved ones did not leave behind vast estates. Consider a widow in Miami whose husband dies leaving a modest brokerage account, a car, and a bank account totaling roughly $120,000, along with the family homestead valued at $500,000. While the estate in total might be valued at $620,000, homestead property does not count toward the $150,000 limit. Under the old law, this estate exceeded the old $75,000 threshold and a formal administration would have been required. Under the new law, the estate is valued at $120,000 and qualifies for summary administration, which can save the family real time and real money.

Beyond a Criminal Case: The Civil Claim for Exploitation of a Vulnerable Adult in Florida

September 29, 2026 | by Chepenik Trushin LLP

Families who discover that an elderly parent was financially exploited often assume that their only recourse is to call the police and hope for a criminal prosecution of the wrongdoer. While a criminal prosecution may be worth exploring, it may not place the victim or their family in the same position they were in prior to the exploitation. Florida law provides a separate civil cause of action for the exploitation of a vulnerable adult to help victims and family members recover what was wrongfully taken.

The claim comes from section 415.1111 of the Florida Statutes, part of Florida’s Adult Protective Services Act. The statute provides that a vulnerable adult who has been abused, neglected, or exploited has a cause of action against the perpetrator, and may recover both actual AND punitive damages. Further, the statute goes on to say that a party who prevails may be entitled to recover their reasonable attorney’s fees and costs, and that these remedies exist in addition to whatever other legal remedies the vulnerable may also have. In other words, this claim can be brought alongside other causes of action such as breach of fiduciary duty, undue influence, or civil theft, rather than in lieu of them.

Two definitions are important considerations under this statute. A vulnerable adult, under the statute, is a person 18 or older whose ability to carry out the ordinary activities of daily living, or to provide for his or her own care or protection, is impaired. That impairment can come from a mental, emotional, sensory, long-term physical, or developmental condition, from brain damage, or simply from the infirmities of aging. Exploitation generally involves someone who occupies a position of trust and confidence with that adult and who knowingly obtains or uses the adult’s money or property in a way that deprives the adult of it. Whether a particular person meets these definitions is fact-specific, and can often be the main dispute in these cases.

Lady Bird Deeds: How to Pass Real Estate Outside of Probate

August 7, 2026 | by Chepenik Trushin LLP

When Florida homeowners think about keeping their house out of probate upon their death, they often assume the only options are titling their home to a revocable living trust or simply adding another person to the deed as a co-owner during their lifetime. While these options may be effective estate planning tools, depending on one’s individual circumstances, they may not be right for everyone. A trust can be costly to prepare, and adding a co-owner gives that person an immediate interest in the property, may expose the home to that person’s creditors, may implicate gift tax considerations, etc. Florida recognizes a third option that avoids many of these problems: the Lady Bird deed.

A Lady Bird deed, also known as an “enhanced life estate deed,” allows a property owner to transfer real estate to designated persons upon their death while keeping complete control of the property during life. The owner, called the grantor, retains the right to live in, sell, mortgage, and even give away the property during their lifetime without anyone else’s permission. The designated person(s) receiving the property upon the death of the grantor, called remaindermen, hold only a future interest that does not vest until the grantor dies. When the grantor dies, title to the property passes to the remaindermen automatically. No probate petition, court order, or new deed is required.

Take a simple example. Suppose Robert, a widower in Miami, owns his home outright and wants his daughter to inherit it, and otherwise does not have other substantial assets. Robert does not want to incur the expense of creating a trust, and he does not want to add his daughter as a co-owner on the deed now, because that would potentially expose the home to her creditors and limit his ability to sell it later without her permission. Robert instead executes a Lady Bird deed, titling the property to himself as the life tenant and naming his daughter as the remainderman. During his lifetime, Robert can do whatever he likes with the home, including selling it or naming a different beneficiary, all without his daughter’s involvement or permission. If Robert still owns the home when he dies, and otherwise has not taken any other action to affect its title, his daughter takes title to the property immediately upon his death without having to go through probate.

Ancillary Administration in Florida: What Happens When a Non-Resident Dies Owning Florida Property

May 28, 2026 | by Chepenik Trushin LLP

When a loved one who lived in another state passes away, families often assume that the probate proceeding in the decedent’s home state takes care of everything the decedent owned, wherever the property happened to be located. In many cases, this assumption is wrong. Each state applies its own law to property located within that state, so when a non-resident dies owning assets in Florida, a separate, secondary probate proceeding called an “ancillary administration” is often required to address the Florida assets. Understanding when ancillary administration is required, how it works, and how it can sometimes be avoided is essential for any non-resident owning Florida assets, and for the families they leave behind.

Ancillary administration is the secondary probate proceeding required in Florida when a non-resident of Florida dies owning Florida property in their own name. The “primary” or “domiciliary” probate is opened in the decedent’s home state and addresses the decedent’s property owned there, and often any “intangible” assets, such as bank accounts, the decedent may have held in other states. The Florida ancillary probate runs alongside the domiciliary administration and addresses the Florida property, including any real property located in Florida and “tangible personal property,” such as vehicles, boats, furniture, etc. that may be located in Florida. The most common type of property addressed through a Florida ancillary probate administration is real estate, whether that be a vacation home, an investment property, or simply a piece of land.

Take a simple example. Suppose Janet, a lifelong resident of Ohio, passes away owning a condominium in Miami titled solely in her own name. Janet has a valid Last Will and Testament, and her family promptly opens a domiciliary probate administration in Ohio. Even though a court in Ohio would have full authority to administer Janet’s Ohio assets, and potentially intangible assets located in other jurisdictions, it would have no authority to administer the Miami condo. To properly administer the Miami condo, the family would need to open an ancillary probate administration in Miami-Dade County, Florida and have a personal representative (what Florida calls an “executor” or “administrator”) appointed in Florida to deal with the condo. The result is two probate proceedings in two states running at the same time, with two sets of court filings (and two sets of legal fees), all before Janet’s beneficiaries can take clean title to the Miami condo.

Planning for Incapacity: Advance Directives vs. Guardianship

February 25, 2026 | by Chepenik Trushin LLP

When a loved one becomes incapacitated and can no longer manage their affairs, families often assume they can simply step in to help. However, legal authority to fully take control of a loved one’s personal and financial affairs does not arise automatically upon their incapacitation. Without proper advance planning, particularly through a durable power of attorney, families may be forced into a court-supervised guardianship, which can be emotionally taxing and financially draining. Understanding the differences between (1) planning in advance for your own potential incapacity and (2) a court-supervised guardianship helps elucidate why planning ahead is so important.

In Florida, guardianship law is governed, in part, by Chapter 744, Florida Statutes. A guardianship may be established only after a court determines that a person lacks capacity to exercise some or all of their rights and that no lesser restrictive alternative (such as the existence of a trust with an appointed trustee to manage the person’s financial affairs, or the existence of a durable power of attorney authorizing someone to act on another’s behalf in the event of their incapacity) is sufficient to properly protect their interests. For example, guardianship may become necessary when no one holds a valid durable power of attorney for a now-incapaciated person, and family members disagree about decision-making authority or there are concerns about exploitation or mismanagement of their loved one’s affairs. Florida courts may appoint a limited guardian, who can only exercise certain rights, or a plenary guardian, who is empowered to take any (legal) action on behalf of the incapaciated person.

Guardianship ultimately places decision-making authority under court supervision. A guardian’s powers are defined by court order, and the guardian must seek approval for certain actions. While guardianship may provide oversight and protection, it also limits flexibility and privacy, and guardianship proceedings often cost many tens of thousands of dollars, particularly if they are contested.

Probate vs. Non-Probate Assets

January 9, 2026 | by Chepenik Trushin LLP

Understanding the difference between those assets which must pass through probate and those which pass outside the probate process is essential for the proper administration of a person’s estate. Probate is the legal process by which the court oversees the marshalling of a decedent’s assets, the distribution of those assets to the decedent’s beneficiaries or heirs-at-law, and payment of any valid debts and taxes of the decedent. When a person dies with a valid Last Will and Testament (i.e., a Will executed in conformity with Florida’s “Will Act Formalities”), the court “admits” the Will to probate and authorizes distribution of any assets subject to probate to the beneficiaries identified in the Will. When a person dies without a valid Last Will and Testament, the court follows Florida’s laws of intestate (i.e., without a Will) succession and authorizes distribution of any assets subject to probate to the decedent’s heirs-at-law, which, depending on various factors, may include a surviving spouse, children, parents, siblings, etc.

Whether a probate administration is testate or intestate, a key question is always: “What assets are actually subject to probate”? In other words, what assets must be disclosed to the court and ultimately administered by the court for distribution to either the beneficiaries or heirs-at-law? In simple terms, any assets that a person dies owning solely in their own name upon their death are considered “probate assets,” or assets that must be administered by the court for distribution to the beneficiaries or heirs. For example, if a person dies owning a bank account titled solely in their own name, that is not designated as payable on death to any other person, that account must go through probate. Similarly, if someone owns an investment property (i.e., a property that is not their homestead under Florida law) in their own name on their date of death, and there are no joint owners or other interest-holders on the deed, that property likewise must go through the probate process.

However, with a strong estate plan, it is often possible to bypass the need for probate entirely. Again, those assets owned by a person solely in their own name upon their date of death must go through the probate process. But there are ways to title assets, or otherwise designate beneficiaries on those assets, in order to keep those assets out of probate. For instance, assets owned jointly with a right of survivorship do not need to go through probate upon the death of the first-to-die co-owner. As an example, if brother and sister Steven and Linda are listed as cotenants with rights of survivorship on the deed to an investment property they own together, then upon the death of Steve, his interest in the property would automatically pass to Linda the moment he dies. His interest in the property would automatically transfer to Linda by operation of his death, and there would be no need for his interest in the property to go through probate. Similarly, it is possible to designate a pay-on-death beneficiary on many types of assets, such as bank accounts and retirement accounts, such that those assets immediately pass to the designated beneficiary or beneficiaries upon a person’s death without the need to go through probate. As an example, let’s say Steve has a checking account titled in his own name with $100,000 in it, with Linda designated on the account as Steve’s pay-on-death beneficiary. Immediately upon Steve’s death, Linda has a right to claim the funds, without the account going through probate. Had Steve not designated Linda on the account as a pay-on-death beneficiary, the account otherwise would have needed to go through probate. Another common method of keeping assets out of probate is by titling them in the name of a revocable or irrevocable trust. Again, only those assets owned in someone’s own name upon their death are subject to probate; any assets properly titled to someone’s trust upon their death do NOT need to go through probate, and instead will be administered in accordance with the terms of the applicable trust.

Special Needs Trusts & Choosing the Right Trustee: Lessons Learned from a Recent Fraud Prosecution Case

October 16, 2025 | by Chepenik Trushin LLP

On June 23, 2025, an indictment was unsealed which charged two Florida men, employees at The Center for Special Needs Trust Administration, with participating in a fraudulent scheme to steal over $100 million from their employer nonprofit organization that managed funds for people with special needs and disabilities. It was alleged that over a 15-year period, the defendants worked together to take money from special needs clients and use it as their personal funds. The head of the Justice Department’s Criminal Division described the crime as “stealing $100 million dollars meant for the most vulnerable members of our society to enrich themselves.”

This case highlights two important issues: the use of special needs trusts for the benefit of disabled individuals, and the importance of choosing the right person or persons to manage such a trust.

A special needs trust is established to hold funds for the benefit of people with special needs and disabilities. These trusts are created in a manner that allows the beneficiary to remain eligible for government benefits, like Supplemental Security Income and Medicaid. This type of trust is able to help individuals with disabilities meet their particular needs, create more comfortable lives, and serve as a safety net in the event they need access to additional funds.

Evolving Estate Planning Needs for Small Business Owners

June 27, 2025 | by Chepenik Trushin LLP

Family-owned businesses collectively create about half of US jobs and make up about 40 percent of the US economy. While family-owned businesses collectively form an economic leviathan, each small business and its owner face distinct needs and circumstances. Some may grow into multi-million-dollar enterprises, while others remain small but reliable. In both cases, and everything in between, small business owners need an estate plan to make sure that the wealth they fought so hard to build does not get lost after death.

Small business owners are savvy. They often know enough to incorporate and to hire a tax professional to help them comply with their tax obligations. Yet many business owners don’t consider the importance of estate planning or when they should work with an attorney to create an estate plan.

For an unmarried entrepreneur with no children and a new business, estate planning could be simple and may, if circumstances warrant, involve only the preparation of a will. But simple does not necessarily mean easy, and even in these “simple” cases it is still prudent to contact a Miami estate planning attorney to make sure that one’s will meets Florida’s legal requirements for a valid will.

Using AI to Craft Legal Arguments

May 23, 2025 | by Chepenik Trushin LLP

Artificial intelligence (“AI”) is a great tool to assist people with a variety of tasks. For example, AI can create grocery lists and corresponding recipes, offer advice for difficult situations, or even draft an email to a colleague. But can AI do the work of an attorney?

In the Matter of Phylliscita Ismay Samuel, the court had to address a lawyer’s careless use of AI in a contested probate proceeding. In this case, a decedent executed a purported prior will in 2012. In 2014, the decedent was the subject of a guardianship proceeding where she was adjudicated incapacitated and the court appointed Samuel as her guardian. Thereafter, the decedent executed the purported 2014 will which was challenged and became the subject of this case. The party challenging the will, Osborne, sought summary judgement and dismissal of Samuel’s petition and denial of the propounded 2014 instrument, alleging that the decedent lacked capacity at the time of execution, and that the instrument was procured by fraud, duress and undue influence by Samuel and others.

While attempting to challenge the will, Osborne faced a huge problem with his case. Osborne’s attorney submitted documents which contained fictional and/or erroneous citations because he relied on generative AI to draft these documents. In other words, the AI which Osborne’s attorney used had “hallucinated” or made up the cases relied on in the legal arguments made to the court.

Reversible Error: Cases where Insufficient Attorney’s Fees Awards were Remanded on Appeal

April 25, 2025 | by Chepenik Trushin LLP

In reviewing a trial court’s award of reasonable attorney’s fees for the prevailing party, appellate courts must look to the record to determine if “there is competent substantial evidence which supports the trial court’s order under the totality of the circumstances.” Raza v. Deutsche Bank Nat’l Tr. Co., 100 So. 3d 121, 126 (Fla. 2d DCA 2012). While the amount of fees awarded is subject to a trial court’s discretion, appellate courts still may assess whether trial courts abused that discretion in determining the amount of fees owed to the prevailing party. In some instances, this leads to trial courts being reversed on appeal for awarding significantly less than the amount requested by the party seeking attorney’s fees.

For example, in Biscayne Roofing Co. v. Palmetto Fairway Condo. Ass’n, the Third District Court of Appeal found error in the amount of attorney’s fees awarded by the trial court. In the court below, unrebutted expert testimony called for a fee award between $19,000 and $25,000, but the trial court awarded only $10,000. The appellate court found that the $10,000 award was not supported by the record and constituted an abuse of the trial court’s discretion. The appellate court remanded the fee issue to the trial court for a redetermination of the amount of attorney’s fees owed consistent with its order. 418 So. 2d 1109, 1110-11 (Fla. 3d DCA 1982).

Further, in Autorico, Inc. v. Gov’t Empls. Ins. Co., the Third District Court of Appeal held that the trial court erroneously awarded attorney’s fees based on a contingency fee agreement and not the amount it found reasonable. In the court below, the plaintiff insurer was awarded a judgment against defendant automobile seller for selling a defective automobile to the insured that caught fire after being driven 10 miles. Plaintiff filed a motion to recover its attorney’s fees on the basis that Defendant had asserted frivolous defenses, thereby entitling Plaintiff to its reasonable attorney’s fees. The trial court granted the motion and found that the reasonable attorney’s fees incurred were $2,150.00, but awarded only $833.33 in accordance with the contingency fee contract between Plaintiff and its attorney. The appellate court reversed and held that it was error for the trial court to base the fee award on the contingency fee contract rather than the reasonable amount of fees it had found to be incurred, as the court was not bound by the contingency fee contract in awarding a reasonable fee. The appellate court remanded with directions to enter an attorney’s fee award of $2,150.00. 398 So. 2d 485, 486-88 (Fla. 3d DCA 1981).