Florida Probate FAQ

Probate is the court-supervised process of distributing a deceased person's assets, paying their debts, and transferring property to beneficiaries or heirs. In Florida, probate is handled by the circuit court in the county where the deceased person lived. The process involves filing the will (if one exists), appointing a personal representative, notifying creditors, inventorying assets, paying valid debts, and distributing what remains to beneficiaries.

Formal administration typically takes 6 to 12 months, though complex estates with disputes, extensive creditor claims, or real property in multiple counties can take longer. Summary administration, available for estates under $75,000 (excluding homestead) or when the decedent passed more than two years ago, can be completed in 4 to 8 weeks. The mandatory creditor notice period alone is 90 days under Florida Statute §733.2121, which sets a minimum floor for formal administration.

Probate costs include court filing fees (typically $300-$400 in Broward County), attorney fees, personal representative fees, and costs for notices and publications. Florida Statute §733.6171 provides a fee schedule for attorneys: 3% of the first $1 million of estate value, 2.5% of the next $4 million, and 2% of the next $5 million. Personal representative compensation follows a similar schedule under §733.617. For a $500,000 estate, attorney fees would be approximately $15,000. Summary administration is significantly less expensive because it involves fewer filings and no ongoing administration.

Yes. The most common methods are: (1) A revocable living trust, assets titled in the trust pass directly to beneficiaries without court involvement. (2) Beneficiary designations on bank accounts, retirement accounts, and life insurance. (3) Joint ownership with right of survivorship or tenancy by the entirety (for married couples). (4) Transfer-on-death designations for brokerage accounts. (5) Lady Bird deeds for real property. A comprehensive estate plan typically combines several of these strategies. The key is doing it before incapacity or death, once someone passes, the available options narrow significantly.

When someone dies without a will (intestate), Florida's intestacy statutes (Chapter 732) determine who inherits. If the deceased was married with no children, the surviving spouse inherits everything. If married with children (all from the same marriage), the spouse inherits everything. If married with children from a different relationship, the spouse gets half and the children split the other half. If unmarried with children, the children split everything equally. If no spouse and no children, assets go to parents, then siblings, then more distant relatives. The court still requires formal probate administration, it just follows the statutory distribution instead of a will.

A personal representative (called an executor in other states) is the person appointed by the court to manage the estate during probate. Their duties include: gathering and inventorying assets, notifying creditors, paying valid debts and taxes, maintaining property during administration, filing required court accountings, and distributing assets to beneficiaries. Under Florida law, a personal representative must be either a Florida resident or a close relative of the deceased (spouse, sibling, parent, child). Non-resident friends cannot serve. The personal representative has a fiduciary duty to the beneficiaries and can be held personally liable for mismanagement.

Florida's homestead protection is one of the strongest in the country. Under Article X, Section 4 of the Florida Constitution, a person's primary residence is protected from forced sale by creditors (with limited exceptions for mortgages, property taxes, and liens for work done on the property). In probate, homestead property cannot be devised freely if the deceased had a surviving spouse or minor children, the surviving spouse has a right to a life estate or an undivided one-half interest. This means you cannot simply leave your house to someone other than your spouse if you're married. This is one of the most common estate planning mistakes we see.

Summary administration is a simplified probate process available under Florida Statute §735.201 when: (1) the value of the entire estate subject to probate (excluding homestead) is $75,000 or less, OR (2) the decedent has been dead for more than two years. It requires a petition signed by the surviving spouse (if any) and all beneficiaries. There is no personal representative appointed, no letters of administration issued, and no formal creditor claim process. The court issues an order of summary administration directing asset holders to transfer property to beneficiaries. It's faster, simpler, and significantly less expensive than formal administration.

No. Only assets owned solely in the deceased person's name, with no beneficiary designation, no joint owner, and not held in a trust, go through probate. Common non-probate assets include: life insurance with a named beneficiary, retirement accounts (401k, IRA) with a named beneficiary, bank accounts with payable-on-death (POD) designations, property held as tenants by the entirety or joint tenants with right of survivorship, and assets held in a revocable living trust. A well-structured estate plan minimizes or eliminates the assets that must pass through probate.

Yes, but only on limited grounds: (1) the will wasn't properly executed (Florida requires two witnesses and the testator's signature), (2) the testator lacked testamentary capacity (didn't understand what they were signing), (3) the will was the product of undue influence (someone manipulated the testator), or (4) the will was procured by fraud. Will contests must be filed within the earlier of 20 days after receiving formal notice or 3 months after the notice of administration is served. These cases are heavily fact-dependent and often require testimony from witnesses, medical records, and sometimes expert opinions.

A revocable living trust is a legal document that holds your assets during your lifetime and transfers them to your beneficiaries after death, without probate. You create the trust, transfer your assets into it (called "funding"), and typically serve as your own trustee during your lifetime. You can change or revoke it at any time. When you pass away, your successor trustee distributes assets according to the trust instructions privately, without court involvement, typically within weeks rather than months. The trust also provides for management of your assets if you become incapacitated, avoiding the need for a court-appointed guardianship.

If you own real property in Florida, a revocable living trust is almost always the better choice. A will must go through probate, which means 6-12 months, court costs, attorney fees, and public record. A trust avoids all of that. A will is sufficient if you have minimal assets, no real property, and accounts with beneficiary designations covering everything. We recommend a trust for anyone who: owns a home or condo in Florida, wants to keep their affairs private, wants assets distributed quickly after death, or wants to avoid the cost and delay of probate. Most of our estate plans include both a trust and a pour-over will as a safety net.

A Lady Bird deed (enhanced life estate deed) allows you to transfer your Florida homestead to a beneficiary upon your death while retaining full control during your lifetime, including the right to sell, mortgage, or lease the property without the beneficiary's consent. The property transfers automatically at death without probate. It's a simple, low-cost alternative to a trust for people whose primary goal is avoiding probate on their home. However, it only covers real property, a trust is still needed for bank accounts, investments, and other assets.

Letters of administration (formally called "Letters of Administration" or "Letters Testamentary") are the official court document that gives the personal representative legal authority to act on behalf of the estate. Banks, title companies, and government agencies require these letters before they will release assets, transfer property, or provide information to the personal representative. They are issued by the probate court after the personal representative is formally appointed. In formal administration, obtaining letters typically takes 2-4 weeks after filing.

Florida law establishes a priority order for paying estate debts under §733.707: (1) costs of administration (attorney fees, personal representative fees, court costs), (2) funeral expenses up to $6,000, (3) debts and taxes with preference under federal law, (4) reasonable medical and hospital expenses of the last 60 days of illness, (5) family allowance, (6) arrearage from court-ordered child support, and (7) all other claims. Creditors have 30 days from receiving direct notice, or 3 months from the date of first publication, to file claims. Claims not filed within these windows are generally barred.

Yes. Under Florida Statute §733.504, a personal representative can be removed for: failure to perform duties, mismanagement of estate assets, breach of fiduciary duty, incapacity, conviction of a felony, or conflict of interest. Any interested person (beneficiary, creditor) can petition the court for removal. The court can also remove a personal representative who fails to file required accountings or who is not administering the estate in a timely manner. If you believe a personal representative is mishandling an estate, prompt legal action is important because assets may be dissipated.

Florida's elective share statute (§732.2065) gives a surviving spouse the right to claim 30% of the decedent's elective estate, regardless of what the will says. This means you cannot completely disinherit your spouse without their consent. The elective estate includes not just probate assets but also certain non-probate transfers like revocable trust assets, joint accounts, and life insurance payable to third parties. The surviving spouse must file an election within 6 months of receiving the notice of administration. This is an important consideration in estate planning for married couples, especially in blended family situations.

To open a probate case in Broward County, you file a Petition for Administration with the Broward County Clerk of Courts, Probate Division. The filing includes: the original will (if one exists), the death certificate, the petition naming the proposed personal representative, and an oath of personal representative. Filing fees are approximately $400. If the proposed personal representative is not a Florida resident and not a qualifying relative, you'll need to find an alternative. After filing, the court reviews the petition, and if everything is in order, issues an Order of Admission (if there's a will) and Letters of Administration. The entire process of getting appointed typically takes 2-4 weeks.