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A Florida Probate Provided by Kracht Law Firm, P.A.

Do retirement accounts require probate?

Usually not. IRAs, 401(k)s, and similar accounts pass to the beneficiaries named on the account, not under the will. They need probate only if the estate is the beneficiary or no named beneficiary survives, and the income-tax rules for inherited accounts need separate advice.

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 How and when the inherited money must be withdrawn and taxed is governed by federal tax law and should be reviewed with a tax adviser before anything is moved.

Why the beneficiary form matters so much

  • The will does not override the beneficiary form.
  • Naming the estate usually means probate, exposure to estate creditors, and often less favorable income-tax treatment.
  • Naming a trust can work well for minors or beneficiaries who need oversight, but the trust must be drafted with retirement-account rules in mind. Benefits payable to a trust are not treated as part of the estate (§ 733.808), and retirement-plan trusts are excluded from a revocable trust’s obligation to pay estate debts (§ 733.707(3)(a)).

Creditor protection

Florida exempts qualifying retirement accounts and plans from the claims of the owner’s and beneficiary’s creditors, and that protection continues after death when the money moves to an inherited IRA through a direct transfer or eligible rollover (§ 222.21). The exemption has exceptions, such as claims of an alternate payee under a qualified domestic relations order.

Divorce

A designation of a former spouse on an IRA is generally void if the marriage was dissolved before death (§ 732.703). Employer plans such as 401(k)s are usually governed by federal law, which may require payment to the person named on the form regardless of the divorce, so this needs specific review (§ 732.703(4)(a)).

Taxes, briefly

Withdrawals from traditional retirement accounts are generally taxable income to the beneficiary. Federal rules decide how quickly an inherited account must be withdrawn, and they differ for spouses, minor children, and other beneficiaries. Do not cash out or retitle an inherited account before getting tax advice; some mistakes cannot be undone.

What changes the answer

  • Who is named as primary and contingent beneficiary, and whether they are living
  • Whether the account is an IRA or an employer plan
  • Whether the decedent divorced after naming a beneficiary
  • Whether the beneficiary is a spouse, a minor, a trust, or the estate

An example

A mother’s IRA names her two children as equal beneficiaries; her will leaves everything to her church. The IRA goes to the children under the beneficiary form, not to the church. Each child opens an inherited IRA by direct transfer, keeping the account protected from their own creditors under Florida law, and consults a tax adviser about the federal withdrawal schedule.

Common mistakes

  • Assuming the will controls the account
  • Cashing out an inherited account and triggering immediate tax
  • Leaving “my estate” as beneficiary
  • Not updating the form after a divorce, marriage, or a beneficiary’s death

What to gather

  • Statements for each retirement account
  • The current beneficiary designation (the custodian can confirm it)
  • Certified death certificates
  • Any divorce decree or marital agreement mentioning the account

Next step

Ask each plan or custodian who the beneficiaries of record are and what its claim process requires, then talk with a tax adviser before choosing how to receive the money.

Related guidance

Sources: Florida Statutes § 222.21, § 732.703, § 733.707, and § 733.808 (2026). Checked on October 23, 2026. This page is general information, not tax advice.

Talk with a Florida probate attorney about your next step.