Florida probate questions, answered

In the first few weeks, focus on protecting property and gathering information, not on paying bills or dividing belongings. Secure the home, vehicles, and valuables; find the original will; and deposit it with the clerk of court within 10 days after learning of the death (§ 732.901). Then collect statements and records so the family can decide whether probate is needed and which kind.

Until a court appoints a personal representative, no one has legal authority to sell the decedent’s property, close accounts, or pay their debts on the estate’s behalf.

When someone dies, property that was in their name alone, with no beneficiary or co-owner, has no one who can legally sign for it. Probate is the court process that gives someone that authority, confirms who is entitled to the property, and gives creditors a fair and final chance to be paid. Even a will cannot transfer title until it is admitted to probate (§ 733.103).

Probate is not required for assets that already pass another way: a named beneficiary, a co-owner with survivorship rights, or a funded trust.

No. A will is a set of instructions for the probate court. Until it is admitted to probate in Florida (or in the state where the decedent lived), it cannot be used to prove title to, or the right to possess, the decedent’s property (§ 733.103).

What a will does do is decide who receives the probate property and who should serve as personal representative. Whether probate is needed at all depends on how each asset is owned, not on whether there is a will.

Only for the assets the trust actually owns. Property that was transferred to the trust during life, or that names the trust as beneficiary, passes under the trust without probate. Anything still in the decedent’s own name usually has to go through probate, often under a “pour-over” will that sends it into the trust afterward (§ 732.513).

Even when everything is in the trust, the successor trustee still has real work to do, and the trust can be required to pay estate expenses and debts the probate estate cannot cover (§ 733.707(3)).

When someone dies without a will, Florida’s intestacy statutes decide who receives their probate property. In general:

• A spouse and no descendants, or descendants who are all the couple’s and the spouse has no others: everything to the spouse (§ 732.102).
• Spouse and children, but either has children outside the marriage: half to the spouse, half to the decedent’s descendants.
• No spouse: everything to the descendants; if none, to the parents; then siblings and their descendants; then more distant relatives (§ 732.103).

Probate is still needed to transfer assets in the decedent’s name alone. Assets with named beneficiaries or co-owners pass outside these rules.

For a first meeting, bring what you have; gaps can be filled later. The most useful items are: a death certificate; the original will and any codicils or trust; a list of assets with recent statements showing how each is owned and who the beneficiaries are; deeds for any real estate; the names and addresses of the spouse, children, and beneficiaries; and any bills, collection letters, deadlines, or court papers.

These documents answer the first three questions in every estate: does it need probate, which procedure fits, and who is entitled to what.

There is no single timeline, and this page does not promise one. What Florida law does set are minimum and target periods. In formal administration, creditors have at least three months after the notice to creditors is first published, and the personal representative is expected to file a final accounting and petition for discharge within 12 months after letters, unless a federal estate tax return is required or the court extends the time (§ 733.702; Fla. Prob. R. 5.400).

Summary administration has no required creditor period, so it can often finish sooner. Disputes, real estate, missing heirs, and taxes are the usual causes of delay.

The cost depends mainly on the procedure and how much work the estate needs. The main parts are attorney fees, the personal representative’s compensation (often waived by family members), court filing fees, newspaper publication of the notice to creditors, and items such as certified copies, a bond premium, appraisals, and recording fees. All are normally paid from the estate, not by the family personally (§ 733.707).

Florida has no mandatory attorney fee for probate. The fee is negotiable, need not be based on the estate’s size, and an attorney who uses Florida’s presumed-reasonable schedule must make written disclosures (§ 733.6171).

Summary administration ends with a court order that tells banks, transfer agents, and other asset holders who receives each asset. No personal representative is appointed. It can be faster and less expensive than formal administration, but only some estates qualify, and the people who receive assets can remain responsible for the decedent’s debts for a period afterward.

A personal representative (Florida’s term for an executor or administrator) is appointed by the court to settle a decedent’s estate (§ 731.201). The job is to find and protect the assets, notify beneficiaries and creditors, pay valid debts, expenses, and taxes, keep complete records, and distribute what remains to the people entitled to it.

It is a fiduciary role: the personal representative must act in the interests of the beneficiaries and creditors, under the same standard of care as a trustee, and can be personally liable for breaching it (§ 733.602, § 733.609).

Letters of administration are the document a Florida probate court issues to show that a personal representative has been appointed and is authorized to act for the estate (§ 731.201). Florida uses that single name whether or not there is a will; you may hear them called “letters testamentary” in other states.

Banks, brokerage firms, title companies, and government agencies will usually ask for a certified copy of the letters, issued by the clerk, before they release information or assets.

Only if they are closely related to the decedent. A Florida resident who is at least 18 and not disqualified can serve (§ 733.302, § 733.303). A person who does not live in Florida can serve only if they are (§ 733.304):

• a legally adopted child or adoptive parent of the decedent;
• related to the decedent by lineal consanguinity, meaning a direct ancestor or descendant such as a parent, child, or grandchild;
• the decedent’s spouse, brother, sister, uncle, aunt, nephew, or niece, or a direct ancestor or descendant of any of them; or
• the spouse of a person who qualifies under this list.

A friend, a cousin, or a business partner who lives outside Florida cannot serve, even if the will names them.

Often yes. Two years after a death, most claims against the decedent are barred, whether or not an estate was ever opened (§ 733.710). That makes the process simpler, but it does not move title. A bank account, brokerage account, or house still in the decedent’s name cannot be transferred without a court order or another legal method.

What changes at two years is the procedure: an estate where the decedent died more than two years ago can use summary administration regardless of its value, as long as the will does not require formal administration (§ 735.201).

Florida courts expect the original signed will. If it cannot be found, a copy is not automatically accepted. An interested person can ask the court to establish the lost or destroyed will, but must prove its exact terms: by the testimony of two disinterested witnesses, or one disinterested witness if a correct copy is available (§ 733.207). This is an adversary proceeding, in which everyone affected must be formally served (Fla. Prob. R. 5.025(a)(4)).

The party offering the copy must also deal with the possibility that the will was revoked. When the original was last in the testator’s own hands and cannot be found, courts may presume the testator destroyed it on purpose.

A self-proving will is a will that, in addition to being signed and witnessed, includes a notarized certificate: the person making the will acknowledges it, and the two witnesses swear that they watched it being signed and signed in front of each other (§ 732.503). A self-proved will can usually be admitted to probate without further proof (§ 733.201), which saves time and avoids tracking down witnesses years later.

Self-proof does not make a will valid by itself. The will must still be properly signed and witnessed.

Usually yes. A will signed by someone who was not a Florida resident when they signed it is valid in Florida if it was valid under the law of the state or country where it was signed, except handwritten (holographic) and oral (nuncupative) wills, which Florida does not accept (§ 732.502(2)). A will that was self-proved under the law of the state where it was signed is treated as self-proved in Florida (§ 732.503).

A will written in another language must be filed with a true and complete English translation (Fla. Prob. R. 5.216).

A caveat is a short document filed with the clerk by someone who is worried that an estate will be opened, or a will admitted to probate, without their knowledge (§ 731.110). If an interested person (other than a creditor) has filed a caveat, the court may not admit a will or appoint a personal representative until that person has been formally notified and has had a chance to participate.

A caveat secures notice. It does not contest the will, and it does not stop the estate from being opened.

Once a Florida estate is opened, the personal representative publishes a notice to creditors. A creditor must then file its claim with the court by the later of two dates:

• three months after the notice is first published, or
• for a creditor who had to be served with the notice, 30 days after the date it was served.

Separately, two years after the date of death, the estate, the personal representative, and the beneficiaries are no longer liable for most claims against the decedent, whether or not an estate was ever opened. These two rules work together, and neither one ends every kind of debt.

A notice to creditors is a formal notice that a Florida estate has been opened and that anyone with a claim against the decedent must file it with the court by a deadline. The personal representative must publish it in a local newspaper and serve a copy directly on every creditor who is known or reasonably ascertainable (§ 733.2121, § 733.701).

Most claims not filed within three months after first publication, or 30 days after a creditor was served if that is later, are barred (§ 733.702).

Yes. Filing a claim does not make it valid. The personal representative, or any other interested person, may file a written objection by the later of four months after the notice to creditors was first published or 30 days after the claim was filed or amended. The objection must also be served on the creditor; an objection that is filed but never served is treated as abandoned (§ 733.705).

Once served, the creditor has 30 days to file a separate lawsuit on the claim, unless the personal representative agrees in writing to more time or the court extends it. If the creditor does nothing, the claim is barred.

Generally, no. In Florida, the decedent’s debts are paid from the decedent’s estate. Children and other beneficiaries are not personally responsible for a parent’s debts just because they inherit, and a collector cannot require them to pay from their own money.

Beneficiaries can become liable in specific situations: if they personally co-signed or guaranteed the debt; if they receive property through summary administration or a small-estate affidavit and valid creditors were not paid (§ 735.206, § 735.304); or if estate property is distributed to them before debts that should have been paid from it.

For a revocable trust, often yes. During the settlor’s life, property in their revocable trust is available to their creditors as if they owned it directly, except for property that would be exempt anyway (§ 736.0505). After death, the trust is liable for the estate’s administration expenses and debts to the extent the probate estate cannot pay them (§ 733.707(3)). The personal representative can certify the shortfall in writing, and the trustee must pay it (§ 736.05053).

Irrevocable trusts are different: whether creditors can reach them depends on what the settlor kept, such as the right to receive distributions.

A surviving spouse usually receives property in three ways: assets that pass outside probate (joint accounts, property held as tenants by the entireties, accounts and policies naming the spouse); what the will gives, or, without a will, an intestate share that is often everything; and statutory protections that apply even if the will says otherwise.

Those protections include homestead rights (§ 732.401, § 732.4015), exempt property such as household furniture up to $20,000 and two vehicles (§ 732.402), a family allowance of up to $18,000 during administration (§ 732.403), and the right to elect an elective share of 30 percent of the elective estate (§ 732.2065).

A beneficiary of a Florida estate is entitled to:

• Notice that the estate has been opened (§ 733.212).
• Information about the assets. Residuary beneficiaries and heirs receive the inventory, and any beneficiary can ask how an asset they will receive was valued (§ 733.604; Fla. Prob. R. 5.340).
• A final accounting and a proposed plan of distribution, with 30 days to object (Fla. Prob. R. 5.400, 5.401).
• A personal representative who acts as a fiduciary, held to the standard of a trustee and liable for losses from a breach (§ 733.602, § 733.609).

If the decedent lived in Florida, the surviving spouse, or if none, the decedent’s children, may claim certain property as “exempt property” (§ 732.402):

• household furniture, furnishings, and appliances in the decedent’s home, up to a net value of $20,000;
• up to two motor vehicles (each 15,000 pounds or less) in the decedent’s name and regularly used by the decedent or the immediate family;
• all 529 college savings plans, including Florida Prepaid accounts; and
• death benefits paid under Florida’s statute for teachers and school administrators killed by violence connected with their work (§ 112.1915).

Exempt property is protected from estate creditors, except lenders with perfected security interests, and comes in addition to the homestead and what the will or intestacy gives. It must be claimed by petition on time.

A person under 18 is a minor (§ 731.201) and cannot sign for or manage an inheritance. How the child’s share is held depends mainly on what the will, trust, or beneficiary form says and how much is involved:

• A trust for the child, if the will or trust creates one: the trustee manages the money under the document’s terms.
• A custodian under the Florida Uniform Transfers to Minors Act, if one was named or the transfer is permitted: the custodian manages it until the child turns 21 (or 18 or 25 in some cases) (§ 710.104, § 710.123).
• The parents as natural guardians, without court appointment, if the total does not exceed $15,000 (§ 744.301(2)).
• A court guardianship of the property for larger amounts with no trust or custodian (§ 744.342).

Yes. Under Florida’s disclaimer law, you can refuse all or part of an inheritance or other interest in property (§ 739.104). To be effective, the disclaimer must be in writing, say that it is a disclaimer, describe what is being disclaimed, and be signed, witnessed, and acknowledged the way a deed is, and the original must be delivered or filed with the right person (§ 739.104, § 739.301).

You cannot disclaim after accepting the property, after transferring or pledging it, or while insolvent (§ 739.402). For federal gift and estate tax purposes, a “qualified” disclaimer must generally be delivered within nine months (26 U.S.C. § 2518).

It depends on how the account is titled:

• Payable-on-death (POD) beneficiary: the bank pays the beneficiary with a death certificate and identification (§ 655.82).
• Joint account: presumed to belong to the surviving owner, unless the account terms say otherwise (§ 655.79).
• The decedent’s name alone, no beneficiary: the bank needs a court order or letters of administration, which means probate, unless the total in the decedent’s sole-name accounts at all banks is $2,000 or less. For those, a bank may pay a close family member by sworn affidavit, but not until six months after the death (§ 735.303).

Usually not. When a Florida resident dies, life insurance payable to a named beneficiary belongs to that beneficiary and is exempt from the claims of the insured’s creditors, unless the policy or an assignment provides otherwise (§ 222.13). The beneficiary claims it directly from the insurer with a death certificate.

Insurance goes through probate when it is payable to the insured, the insured’s estate, or the estate’s representatives. It then becomes an estate asset, administered like any other and available to the estate’s creditors (§ 222.13).

Usually not. An IRA, 401(k), 403(b), or pension death benefit is paid to the beneficiaries named on the account’s beneficiary form, not under the will. The beneficiary claims it directly from the plan or custodian. It becomes a probate asset only if the estate is the beneficiary, or if no named beneficiary survives and the plan’s default is the estate.

In Florida, retirement accounts, including inherited IRAs, are generally protected from creditors (§ 222.21). How and when the inherited money must be withdrawn and taxed is governed by federal tax law and should be reviewed with a tax adviser before anything is moved.

Often without a probate order. Florida’s motor vehicle statute lets the Department of Highway Safety and Motor Vehicles issue a new title to the people entitled to a deceased owner’s vehicle based on affidavits (§ 319.28):

• No will: an heir’s affidavit that the estate is not indebted and that the surviving spouse and heirs have agreed on how to divide the estate.
• A will: a certified copy of the will if it has been probated, with an affidavit that the estate is solvent; or, if the will is not being probated, a sworn copy of the will and an affidavit that the estate is not indebted.
• An affidavit by a Florida-licensed attorney identifying the rightful heirs can also establish ownership.

If those conditions cannot be met, the vehicle is transferred by the personal representative or under a summary administration order.

The mortgage stays with the property. Death does not cancel it, and a lender can still enforce its lien even if it never files a claim in the probate case (§ 733.702(4)(a), § 733.710(3)). Florida’s homestead protection does not apply against a loan used to buy or improve the home (Art. X, § 4, Fla. Const.).

Heirs are not personally liable for the decedent’s mortgage unless they signed the loan. But someone has to keep paying it, refinance it, or sell the property, or the lender can eventually foreclose. For most homes, federal law bars the lender from calling the loan due just because it passes to a relative at death (12 U.S.C. § 1701j-3(d)).

Yes, but how depends on how the home passes. If it was the decedent’s protected homestead, it passes outside the personal representative’s control directly to the heirs or permitted beneficiaries (§ 733.607, § 733.608). Those owners sign the deed, usually after the court enters an order determining homestead status, which title insurers generally expect (Fla. Prob. R. 5.405).

If it was not homestead, the personal representative can usually sell it, without a court order if the will grants a power of sale, or with the court’s authorization or confirmation if it does not (§ 733.613).

When a successor trustee takes over after a settlor’s death, Florida law requires the trustee to administer the trust in good faith, under its terms, and solely in the beneficiaries’ interests (§ 736.0801, § 736.0802). In practice the first duties are:

• Notify: file a notice of trust with the court (§ 736.05055), and within 60 days tell the qualified beneficiaries that the trust exists, who the trustee is, and their right to a copy of the trust and to accountings (§ 736.0813).
• Protect and manage the assets prudently (§ 736.0804).
• Account to the qualified beneficiaries at least annually (§ 736.0813, § 736.08135).
• Pay valid expenses, taxes, and estate debts the probate estate cannot cover (§ 736.05053), then distribute as the trust directs.

Yes. The trustee of an irrevocable trust, which includes a revocable trust once the settlor has died, must give each qualified beneficiary a trust accounting at least once a year, when the trustee changes, and when the trust ends (§ 736.0813). Qualified beneficiaries are also entitled, on reasonable request, to a complete copy of the trust and relevant information about its assets and liabilities.

The accounting must be understandable and must show every receipt, disbursement, gain, and loss, including what the trustee paid itself, and list the assets with their values (§ 736.08135).

When the settlor of a revocable trust dies, the trustee must file a notice of trust with the court in the county where the settlor was domiciled, and with the court handling the settlor’s probate estate if there is one (§ 736.05055). The notice states the settlor’s name and date of death, the trust’s title and date, and the trustee’s name and address.

It is not a copy of the trust, and it does not disclose the beneficiaries or assets. Its purpose is to let the personal representative and the court know a trust exists that may be liable for estate expenses and debts (§ 733.707(3)).

No. A Florida power of attorney terminates when the principal dies (§ 709.2109). From that moment the agent has no authority to write checks on the decedent’s accounts, sell property, or sign anything for the decedent, even to pay the funeral or the decedent’s bills.

After death, authority belongs to the personal representative appointed by the probate court, for estate assets, and to the successor trustee, for assets in a trust. The former agent may be the right person to take on one of those roles, but needs the new appointment first.

A pour-over will is a will that leaves your probate assets to the trustee of your trust. Florida allows a will to give property to a trust that exists when the will is signed (or is signed at the same time), even if the trust is revocable or amended later (§ 732.513).

It is a safety net. Assets that pour over must still go through probate before they reach the trust (§ 733.103). The goal is to have little or nothing pass under it, by titling assets to the trust during life.

If the deed was valid and the owner never sold the property or changed the beneficiaries, the people named in the deed become the owners when the owner dies. No probate is needed for that property. The beneficiaries usually record a certified death certificate in the county where the property is located so that the public records show the life estate has ended.

Two things can change that answer: a homestead owner who was survived by a spouse or a minor child, and a deed that does not say what happens if a beneficiary died first.

A revocable living trust is a written arrangement in which you, usually as your own trustee, hold assets for your own benefit during life, with instructions for who manages and receives them if you become unable to act or after you die. You can change or revoke it while you are living and competent. Its main practical value is continuity: a successor trustee can step in without a guardianship or a probate proceeding for the assets the trust holds.

A Florida community property trust is a trust signed by both spouses that declares the property in it to be community property under the Community Property Trust Act (§ 736.1501–§ 736.1512). The main reason couples consider one is federal income tax: on the first spouse’s death, community property can receive a new tax basis on both halves, not just the half that belonged to the spouse who died (26 U.S.C. § 1014(b)(6)).

Whether federal tax law will honor this elective Florida arrangement has not been settled, and the trust changes how creditors, divorce, and inheritance work for the property in it. It is a significant property-rights decision, not a different name for a joint revocable trust.

There is no single legal device called a “Florida homestead trust.” The phrase is used for several different arrangements, most often a revocable living trust that holds the family home, and sometimes an irrevocable trust designed to take the home outside Florida’s inheritance restrictions. Which one you have decides the result.

Three questions must be answered separately for any trust holding a Florida home: does it keep the property-tax exemption, does it keep protection from creditors, and is it subject to the constitutional limits on who may inherit a homestead? Putting a home into an ordinary revocable trust does not get around those limits.

“Enhanced life estate deed” and “Lady Bird deed” are two names for the same tool. You deed a Florida property to yourself for life and name one or more people (or a trust) to receive it when you die, while reserving the power to sell, mortgage, or change the beneficiaries without their consent. At death, the property passes to the named beneficiaries without probate for that property.

It covers only the property described in the deed. Because you keep the power to take the property back, it does not get around Florida’s homestead protections for a surviving spouse or minor child.