How Probate Works in Florida
How Probate Works in Florida
Florida probate is the court-supervised process of transferring a deceased person's individually owned assets to their heirs or beneficiaries. Florida offers three levels of probate - disposition without administration, summary administration, and formal administration - and which one you need depends on the value of the estate and how long ago the person died.
Florida is a separate property (common law) state, not a community property state. Each spouse owns their own property individually unless they choose to hold it jointly. This matters because only property owned solely by the deceased goes through probate.
When Probate Is NOT Required
Many assets transfer automatically at death without any court involvement. Before starting probate, check whether the estate even needs it.
Assets that bypass probate:
| Asset Type | How It Transfers |
|---|---|
| Joint tenancy with right of survivorship (JTWROS) | Automatically to surviving joint owner |
| Payable-on-death (POD) bank accounts | Directly to named beneficiary |
| Transfer-on-death (TOD) securities | Directly to named beneficiary |
| Life insurance with named beneficiary | Directly to beneficiary |
| Retirement accounts (401(k), IRA) with named beneficiary | Directly to beneficiary |
| Revocable living trust assets | Per trust terms, no court |
| Lady Bird deed property | Automatically to remainder beneficiary |
Note on real property: Florida does not recognize transfer-on-death (TOD) deeds for real property. However, Florida does recognize Lady Bird deeds (enhanced life estate deeds), which accomplish a similar result by passing real property to a named remainder beneficiary at death without probate.
If all of the deceased's assets fall into the categories above, you likely do not need probate at all.
The Three Probate Paths
Path 1: Disposition Without Administration
The simplest option. No Personal Representative is appointed, and no ongoing court supervision occurs.
Requirements (Fla. Stat. Section 735.301):
- Estate assets are limited to exempt property, personal property not exceeding the total of exempt property allowances, funeral expenses, and reasonable medical expenses from the last 60 days of life
- Any interested person can file the petition
Process:
- File a petition with the circuit court
- The court enters an order authorizing disposition of assets
- No PR is appointed, no inventory filed, no creditor notice required
Filing fee: Approximately $230
Timeline: Can be completed in a matter of weeks.
Best for: Very small estates where the deceased owned little beyond personal belongings and exempt property.
Path 2: Summary Administration
A simplified process that avoids the need for an ongoing Personal Representative.
Requirements (Fla. Stat. Section 735.201):
- The total value of the estate subject to probate is $75,000 or less, OR
- The deceased died more than 2 years ago (regardless of estate value)
Process:
- File a petition for summary administration with the circuit court
- Include a list of all assets, their values, and the proposed distribution
- All beneficiaries must either sign the petition or receive formal notice
- The court enters an order distributing assets directly to beneficiaries
- No PR serves on an ongoing basis
- Creditor claims are barred after 3 months from the date of service of the order
Filing fee: Approximately $345
Timeline: Typically 1 to 3 months.
Best for: Smaller estates or situations where the death occurred more than 2 years ago and all beneficiaries agree on distribution.
Path 3: Formal Administration
Full probate with court supervision, a Personal Representative, creditor notice, and formal accounting.
When required: The estate exceeds $75,000 in probatable assets AND the deceased died less than 2 years ago.
Process (Chapter 733, Florida Statutes):
- Deposit the will with the circuit court clerk within 10 days of learning of the death (Fla. Stat. Section 732.901)
- File a petition for administration with the circuit court
- Personal Representative is appointed and receives Letters of Administration
- Notice of administration is served on all known beneficiaries and creditors (Fla. Stat. Section 733.212)
- Publish notice to creditors in a local newspaper for 2 consecutive weeks (Fla. Stat. Section 733.2121)
- File an inventory of estate assets within 60 days of appointment (Fla. Stat. Section 733.604)
- Creditor claims period: Known creditors have 30 days from notice; unknown creditors have 3 months from first publication. There is a 2-year absolute bar on all claims after death.
- Pay claims in the order of priority set by Fla. Stat. Section 733.707
- File a final accounting with the court
- Distribute remaining assets to beneficiaries per the will or intestacy law
- Close the estate by court order
Filing fee: Approximately $400
Timeline: 6 to 9 months for simple estates, 12 to 24+ months for complex or contested ones.
Key Deadlines at a Glance
| Deadline | Action | Statute |
|---|---|---|
| 10 days after learning of death | Deposit will with circuit court clerk | Section 732.901 |
| After PR appointment | Serve notice of administration on beneficiaries | Section 733.212 |
| 2 consecutive weeks after filing | Publish notice to creditors in newspaper | Section 733.2121 |
| 60 days after PR appointment | File inventory of estate assets | Section 733.604 |
| 30 days after notice | Deadline for known creditors to file claims | Section 733.702 |
| 3 months after first publication | Deadline for unknown creditors to file claims | Section 733.702 |
| 2 years after death | Absolute bar on all creditor claims | Section 733.710 |
| 12 months after appointment | PR must file final accounting or status report | Section 733.901 |
Filing Fees Summary
| Probate Type | Filing Fee | Court Costs (Approx.) |
|---|---|---|
| Disposition without administration | $230 | Minimal |
| Summary administration | $345 | Minimal to moderate |
| Formal administration | $400 | Moderate to significant |
These are base filing fees only. Total costs including attorney fees, PR compensation, publication costs, and court costs will be higher.
Personal Representative Requirements
Florida calls the executor a "Personal Representative" (PR). Not everyone can serve.
Who can serve (Fla. Stat. Section 733.304):
- Any Florida resident who is 18 or older and has not been convicted of a felony
- A non-Florida resident only if they are a spouse, sibling, parent, child, aunt, uncle, nephew, niece, or grandparent of the deceased
Who cannot serve:
- Non-family members who live outside Florida
- Anyone convicted of a felony
- Anyone found by the court to be unfit
Priority of appointment:
- Person named in the will
- Person selected by a majority of beneficiaries
- A devisee under the will
- Next of kin
For more on what the PR must do, see executor duties and timeline in Florida.
Personal Representative Compensation
Florida law provides a fee schedule for PR compensation based on the compensable value of the estate:
| Estate Value | PR Fee |
|---|---|
| First $1,000,000 | 3% |
| $1,000,001 - $5,000,000 | 2.5% |
| $5,000,001 - $10,000,000 | 2% |
| Over $10,000,000 | 1.5% |
The court may adjust this amount based on the complexity of the work involved.
Attorney Fees
Florida attorney fees in probate follow a similar sliding scale. The attorney and PR can agree to different terms, and the court reviews all fees for reasonableness. Expect attorney fees to be roughly equivalent to PR compensation.
Intestate Succession: What Happens Without a Will
When someone dies without a will, Florida's intestacy statutes determine who inherits (Fla. Stat. Sections 732.102-732.103).
| Surviving Family | Spouse Receives | Others Receive |
|---|---|---|
| Spouse only, no descendants | 100% | - |
| Spouse + descendants (all shared) | 100% | - |
| Spouse + descendants from outside marriage | 50% | Descendants split 50% |
| No spouse, descendants only | - | Descendants inherit equally |
| No spouse, no descendants | - | Parents, then siblings, then extended family |
Elective Share
A surviving spouse who is unhappy with what the will provides can elect to take 30% of the elective estate instead (Fla. Stat. Section 732.201). The elective estate includes not just probate assets but also certain non-probate transfers. The election must be filed within the earlier of 6 months after the date of service of the notice of administration or 2 years after the date of death.
Exempt Property
Regardless of the will, the surviving spouse or minor children are entitled to:
- Household furnishings and contents up to $20,000 in value (Fla. Stat. Section 732.402)
- Up to two motor vehicles that were regularly used by the deceased or the family
- These items are not subject to creditor claims except for perfected security interests
Homestead in Probate
Florida's homestead rules are among the most protective and restrictive in the country. Under Art. X, Section 4 of the Florida Constitution:
Creditor protection:
- The homestead is exempt from forced sale by creditors (except for mortgages, property taxes, and contractors' liens)
- There is no dollar cap on this protection
- Size limits: 1/2 acre within a municipality or 160 acres in an unincorporated area
Devise restrictions (Art. X, Section 4(c)):
- If the owner is survived by a spouse or minor child, the homestead cannot be freely devised
- The surviving spouse can choose between a life estate (with remainder to descendants) or an undivided 50% interest as tenants in common (election must be made within 6 months)
- These restrictions override the will
This means even a well-drafted will that leaves the home to someone other than the spouse will fail if there is a surviving spouse. The homestead protections are constitutional and cannot be waived by contract.
Electronic Wills
Florida recognizes electronic wills under Fla. Stat. Sections 732.521-732.528. An electronic will must be:
- Created and stored in an electronic record
- Signed by the testator using an electronic signature
- Witnessed by two people using electronic signatures
- Notarized electronically by a notary under Florida's online notarization law
Electronic wills are treated the same as paper wills in probate.
Frequently Asked Questions
How much does probate cost in Florida?
Filing fees range from $230 (disposition without administration) to $400 (formal administration). Total costs including attorney fees, PR compensation, publication costs, and other expenses typically run 3-7% of the estate value for formal administration.
Can I avoid probate in Florida?
Yes. Using beneficiary designations, joint ownership, Lady Bird deeds, and revocable living trusts can move most or all assets outside of probate. Florida does not have TOD deeds for real property, but Lady Bird deeds serve a similar function.
What is the $75,000 threshold for summary administration?
The $75,000 limit under Fla. Stat. Section 735.201 refers to the value of the estate subject to probate, not the total value of all assets the deceased owned. Assets with beneficiary designations, joint accounts, and trust assets do not count toward this threshold.
Do I need an attorney for probate in Florida?
For formal administration, yes - the Personal Representative must be represented by an attorney unless they are the sole beneficiary (Fla. Stat. Section 733.6171). For summary administration and disposition without administration, an attorney is not strictly required but is strongly recommended.
What if the will was made in another state?
A will that is valid in the state where it was executed is generally valid in Florida (Fla. Stat. Section 732.502(2)). However, the probate process follows Florida law regardless of where the will was made.
What to Do Next
Probate connects to nearly every other step after a death - from getting appointed as Personal Representative to filing tax returns and distributing assets. For the complete picture, see what to do when someone dies in Florida or executor duties and timeline in Florida.
Kaira organizes every step for your state — deadlines, forms, and next actions — so nothing gets missed. See how it works.
Disclaimer: This article is for informational purposes only and does not constitute legal, tax, or financial advice. Probate rules vary by county and individual circumstances. Consult a licensed Florida attorney for advice specific to your situation.
Sources: Florida Statutes Chapters 732, 733, 735; Art. X, Section 4, Florida Constitution; Florida Rules of Judicial Administration.