Probate

What is Florida Probate?

Probate is essentially the legal “winding down” of a deceased person’s financial affairs. It involves:

• Validating the decedent’s Last Will and Testament, if one exists
• Identifying and gathering the deceased person’s assets (e.g., real estate, bank accounts, investments, personal property)
• Paying any outstanding debts, taxes, and final expenses
• Distributing the remaining assets according to the terms of their Last Will and Testament, or if there is no Will, according to Florida’s Laws of Intestacy

Do All Assets Go Through Probate in Florida?

No. Only assets in the Decedent’s sole and individual name are subject to Probate Administration. Certain assets are designed to bypass probate and transfer directly to certain beneficiaries. These typically include:

• Jointly owned property with rights of survivorship (e.g., a home owned by a married couple)
• Bank accounts or investment accounts with “payable on death” (POD) or “transfer on death” (TOD) designations
• Life insurance policies and retirement accounts with named beneficiaries
• Assets held within a revocable living trust

Types of Probate Administration in Florida

Florida law provides for different types of probate administration, depending on the size and complexity of the estate.

Formal Administration

This is the most common type of probate for estates with assets exceeding $75,000 (excluding exempt homestead real property) or when the deceased has been dead for less than two years and real estate is being sold. It involves a more comprehensive court-supervised process, including the appointment of a Personal Representative (executor) to manage the estate. Formal administration typically takes 6 to 12 months or longer, with the average administration taking about 8 months to complete.

Summary Administration

This is a simplified and faster probate process available for smaller estates. It applies when the value of the entire estate subject to administration in Florida (excluding exempt homestead property) does not exceed $75,000, OR when the decedent has been deceased for more than two years regardless of asset value, as creditor claims are generally time-barred after two years from the decedent’s date of death. A Personal Representative is typically not appointed in a summary administration. A Summary Administration may not be appropriate for certain types of assets regardless of value, including various stocks and bonds, tax refunds due the Decedent, and other similar assets. A Personal Representative is often required to liquidate these types of assets.

Disposition of Personal Property Without Administration

This is a very limited process for extremely small estates where the deceased left only exempt personal property and non-exempt personal property the value of which does not exceed the costs of the decedent’s funeral expenses and final medical expenses. This type of administration is very rare.

The Formal Probate Process in Florida (Key Steps)

If an estate requires Formal Administration, the process generally involves these steps:

Depositing the Last Will and Testament with the Clerk of Court (if one exists). If the Decedent has a Last Will and Testament, the custodian of the Will is obligated to deposit the Will with the Clerk of Court in the County in which the Decedent resided within 10 days of being notified of the Decedent’s death, pursuant to Florida Statute section 732.901.

Obtaining a Death Certificate

The Funeral Home Director should assist the Funeral Decision Maker in applying for and obtaining both Short Form and Long Form Certifications of Death from the Florida Bureau of Vital Statistics. It is important that the information provided to the Funeral Director be accurate, as obtaining a Corrected Death Certificate can take a considerable amount of time and effort.

Filing the Petition

An interested party files a Petition for Administration, and other various initial pleadings, with the Circuit Court in the County where the Decedent resided. If a Last Will and Testament exists, it is submitted to the Court for validation.

Appointment of Personal Representative

The Court appoints a Personal Representative (executor) to manage the estate. This person is typically named in the Last Will and Testament or, if there’s no Will, appointed according to Florida’s Laws of Intestacy.

Notice to Creditors and Beneficiaries

The Personal Representative notifies all known or reasonably ascertainable creditors of the Decedent that the Probate Administration has been opened, and publishes a Notice to Creditors in a local newspaper to alert any potential claimants to file a claim within the relevant time period (usually three months). Beneficiaries named in the Last Will and Testament, or heirs-at-law if there is no Will, are also notified of the Probate Administration.

Inventory and Appraisal of Assets

The Personal Representative identifies, gathers, and creates a detailed inventory of all probate assets, which may require various appraisals to determine their date-of-death market value.

Payment of Debts and Taxes

Valid debts of the Decedent, funeral expenses, medical expenses, and any applicable federal or state taxes are paid from the estate’s assets.

Final Accounting and Distribution to Beneficiaries

The Personal Representative provides a final accounting of all transactions during the Probate Administration to the Court and Beneficiaries for approval. Once approved, the remaining assets, if any, are distributed to the Beneficiaries of the estate. The estate can be closed, and the Personal Representative discharged.

Ancillary Probate in Florida

For Residents of other States owning Florida Property

If a non-resident of Florida dies owning assets in Florida (such as a vacation home), an Ancillary Probate Administration may be necessary in Florida, in addition to the probate conducted in their home state. This ensures proper transfer of the Florida assets. The type of Ancillary Probate Administration that will be required follows the same rules set forth in “Types of Probate Administration in Florida”, above.