Written by Jeffrey H. Skatoff • April 10th, 2015
Probate—the process by which an estate is administered—is fraught with obscure and complex rules which must be followed in a precise manner in order to ultimately distribute assets to the intended beneficiaries. This process can be automated to some degree, as Florida law permits interested persons (defined as those reasonably expected to be affected by the outcome of a proceeding) to execute written waivers and consents so that certain procedures can be accelerated or eliminated altogether. However, as with most shortcuts in life, this convenience can come at a price. As this article will demonstrate, waiver in the context of probate is neither inherently good nor bad, and should be evaluated on a case-by-case basis, ideally with input from a trusted attorney. Below, I use two areas of probate administration to show how waiver can produce different results depending on the circumstances.
Waiver and Homestead Property
Even though a decedent’s Florida homestead is typically not a probate asset subject to administration, circuit courts sitting in probate are empowered to issue orders affirming the homestead status of real property. Because these orders are recorded as part of the public record, thereby putting third parties on notice as to a home’s protected character, they are of great significance and importance. To obtain such an order, Florida Probate Rule 5.405 requires the filing of a petition identifying the individuals who may have an interest in the subject property. While not explicitly stated in the Rule, these named individuals are entitled to notice of pending proceedings as to the subject property’s homestead status.
In practice, obtaining a homestead order is not as straightforward as simply filing a petition and spontaneously appearing before a judge to request an order. Instead, the process looks something like this: (1) file the requisite petition (2) provide notice to interested persons; (3) permit interested persons to respond and/or object to the petition; (4) schedule a hearing before a judge; and (5) obtain a homestead order. An individual seeking to accelerate this process can circulate waivers to interested persons. A judge then summarily issues the desired order upon the filing of the waivers. This is extremely desirable where the owners wish to expeditiously sell the homestead, such as where it is subject to a mortgage.
Waiver and Notice of Administration
Under Florida Law, a personal representative is required to give written notice to the surviving spouse and all estate beneficiaries that probate has commenced. This document, known as the Notice of Administration, must provide the recipients with certain information regarding their rights (further discussion as to those entitled to notice is available here). For instance, the Notice of Administration must state that a surviving spouse is required to file his/her election to take elective share within six months of service of the Notice. A spouse who fails to timely file the election to take elective share on time forfeits this right forever.
Often times, the personal representative will serve the beneficiaries and surviving spouse with a Waiver of Service of Notice of Administration (or similarly titled document). A surviving spouse who signs this document waives his/her right to receive the formal Notice of Administration document which articulates their rights in full. Once the waiver is executed by the spouse, it will be filed with the court. The deadlines otherwise set forth in the Notice of Administration will begin to run against the waiving party the day the waiver is filed (Fla. Stat. § 733.212(8)) even though the waiver contains no information as to relevant dates and deadlines. Thus, a surviving spouse who signs such a waiver would have absolutely no idea as to the deadlines by which his/her rights must be enforced. It is extremely dangerous to sign a waiver in these circumstances because it facilitates the nondisclosure of critical information.
In Florida probate, waivers are often circulated by a personal representative because they can accelerate estate administration. However, it is important to recognize that the benefits waivers and consents provide to personal representatives do not often inure to beneficiaries, heirs, and surviving spouses. For that reason, one should always consider consulting an attorney before signing any waiver in a Florida probate, even where the personal representative is a trusted friend or relative who has provided assurance that the document is totally benign. Probate lawyer Jeffrey H. Skatoff and the attorneys and Clark Skatoff, PA are available for free consultation at 561-842-4868.