Florida Probate Law: Estates, Wills, and the Probate Process

Florida's probate system governs the legal transfer of a deceased person's assets to heirs and creditors, operating under a statutory framework that touches every estate administered within the state's circuit courts. The process applies whether or not a decedent left a valid will, and its scope extends to real property, financial accounts, business interests, and personal property titled solely in the decedent's name. Understanding how Florida structures this process — and where the law draws hard boundaries — is essential for attorneys, fiduciaries, estate planners, and researchers working within the state's legal system.

• Definition and Scope
• Core Mechanics or Structure
• Causal Relationships or Drivers
• Classification Boundaries
• Tradeoffs and Tensions
• Common Misconceptions
• Checklist or Steps (Non-Advisory)
• Reference Table or Matrix
• References

Definition and Scope

Florida probate law establishes the court-supervised mechanism through which a decedent's estate is identified, creditors are paid, and remaining assets are distributed to rightful beneficiaries. The governing statutory authority is the Florida Probate Code, codified primarily in Chapters 731 through 735 of the Florida Statutes. Procedural rules are set by the Florida Probate Rules, Part I of the Florida Rules of Court, which govern filings, notices, and timelines in circuit court proceedings.

Jurisdiction over probate matters rests exclusively with Florida's circuit courts (Florida Statutes § 26.012), each of which maintains a probate division. The Florida circuit courts handle both testate estates (where the decedent left a will) and intestate estates (where no valid will exists).

Scope and Geographic Limitations: This page covers Florida state probate law exclusively. Federal tax obligations — including federal estate tax under 26 U.S.C. § 2001, which applies to estates exceeding $12.92 million as of 2023 (IRS Rev. Proc. 2022-38) — fall outside Florida's probate code jurisdiction and are administered by the Internal Revenue Service. Ancillary probate proceedings for non-resident decedents who held Florida real property are governed by Florida Statutes § 734.102 but require separate analysis. This page does not address trust administration, guardianship proceedings, or federal bankruptcy exemptions, though those areas frequently intersect with probate matters.

The regulatory context for the Florida legal system provides broader framing for how Florida's statutory framework interacts with constitutional and federal law.

Core Mechanics or Structure

Florida probate proceeds through three primary procedural tracks, each calibrated to estate size and complexity.

Formal Administration applies to estates valued above $75,000 in probate assets or where the decedent has been dead for fewer than 2 years (Florida Statutes § 733.101). It requires appointment of a personal representative (the executor), a creditor notice period of 90 days from the first publication of a Notice to Creditors (Florida Statutes § 733.702), and court oversight at multiple stages including inventory filing, accounting, and final discharge.

Summary Administration is available for estates with total probate assets of $75,000 or less, or when the decedent has been dead for more than 2 years (Florida Statutes § 735.201). No personal representative is appointed; instead, a petition for summary administration is filed directly by surviving beneficiaries or the surviving spouse.

Disposition Without Administration applies in the narrowest circumstances: where the only probate assets are exempt property or amounts owed directly to the decedent that do not exceed the cost of preferred funeral expenses (Florida Statutes § 735.301).

Personal representatives in Florida must generally be Florida residents or related by blood, marriage, or adoption to the decedent (Florida Statutes § 733.304). Banks and trust companies authorized to do business in Florida may also serve.

Causal Relationships or Drivers

The triggers for probate involvement are structural: when a decedent holds assets titled solely in their name without a designated beneficiary or survivorship provision, those assets cannot transfer without court supervision. Joint tenancy with right of survivorship, payable-on-death designations, and beneficiary designations on life insurance and retirement accounts bypass probate entirely because title passes by operation of law.

Florida's homestead law is a significant driver of probate complexity. Article X, Section 4 of the Florida Constitution exempts the homestead from forced sale and restricts the decedent's ability to devise it freely when a surviving spouse or minor children survive. A decedent with a surviving spouse cannot devise homestead to a third party; the spouse receives a life estate with a vested remainder in the lineal descendants, or, if elected, an undivided one-half interest as tenant in common (Florida Statutes § 732.401).

Intestacy rules are activated when a decedent dies without a valid will. Florida's intestate succession statute (Florida Statutes § 732.102–732.103) determines the distribution hierarchy: surviving spouse, descendants, parents, siblings, and more remote relatives in a fixed statutory sequence.

Classification Boundaries

Florida probate law draws hard distinctions between probate assets and non-probate assets:

• Probate assets: property titled solely in the decedent's name; interests as a tenant in common; assets with no valid beneficiary designation
• Non-probate assets: jointly held property with survivorship rights; assets with named beneficiaries (IRAs, 401(k)s, life insurance); revocable living trust property; assets held in a Florida land trust

Wills in Florida are classified as attested wills (signed by the testator in the presence of 2 witnesses, both of whom sign in the testator's presence — Florida Statutes § 732.502) and holographic wills (entirely handwritten by the testator). Florida does not recognize holographic wills unless executed in compliance with the attested will formalities. Self-proved wills — those with an attached notarized affidavit — are admitted to probate without requiring witness testimony.

For a broader view of how Florida property law interacts with estate planning, see Florida Property Law Overview.

Tradeoffs and Tensions

Formal administration provides creditor protection and clear court oversight, but its 90-day creditor period extends the timeline significantly — average formal administration proceedings take 9 to 18 months in contested or complex estates. Summary administration resolves more quickly but offers beneficiaries less protection against undisclosed creditor claims because it does not require publication of a Notice to Creditors in all circumstances.

The elective share creates a persistent tension between testamentary freedom and spousal protection. A surviving spouse who receives less than 30% of the elective estate (a defined statutory amount under Florida Statutes § 732.2065) may elect against the will. This right applies regardless of the will's terms and encompasses not just probate assets but a broad definition of the elective estate including revocable trusts, joint accounts, and certain transfers made within 1 year of death.

Attorney's fees in Florida probate are governed by Florida Statutes § 733.6171, which establishes a compensation schedule based on estate value — 3% on the first $1 million in estate value, decreasing in percentage brackets thereafter. These fees apply to both the personal representative and the attorney separately, which creates a compounding cost structure for larger estates.

The broader Florida legal system balances these competing interests through judicial oversight at the circuit court level, with appellate review available through the district courts of appeal.

Common Misconceptions

Misconception: A will avoids probate.
A will does not bypass probate — it controls the distribution of probate assets through the probate process. Assets with valid beneficiary designations or survivorship provisions avoid probate regardless of what a will states. A will has no legal effect on jointly held property or IRA accounts with named beneficiaries.

Misconception: The surviving spouse automatically inherits everything.
Under Florida intestacy law, if the decedent has children from a prior relationship, the surviving spouse does not receive the entire estate. The surviving spouse receives the first $60,000 plus one-half of the remaining estate; the decedent's descendants receive the balance (Florida Statutes § 732.102).

Misconception: Small estates never require probate.
Estates below $75,000 in probate value qualify for summary administration — a simplified process — but they still require court involvement. Only Disposition Without Administration under § 735.301 eliminates court proceedings entirely, and it applies in a narrow set of circumstances.

Misconception: Creditors have unlimited time to file claims.
Florida statute imposes strict deadlines. Creditors who receive formal notice have 30 days from receipt of written notice or 3 months from the first publication date of the Notice to Creditors, whichever is later, to file claims (Florida Statutes § 733.702).

Checklist or Steps (Non-Advisory)

The following sequence reflects the typical formal administration workflow under the Florida Probate Code and Florida Probate Rules:

1. File Petition for Administration — filed in the circuit court of the county where the decedent was domiciled at death
2. Admit will to probate — the original will is filed; the court enters an order admitting it (or establishing intestacy)
3. Appoint personal representative — court issues Letters of Administration granting the representative authority to act
4. File Notice of Administration — served on all interested persons, triggering the 90-day period for objections to the validity of the will
5. Publish Notice to Creditors — published once per week for 2 consecutive weeks in a newspaper of general circulation; starts the creditor claims period
6. File inventory — a verified list of all probate assets with fair market values, filed within 60 days of appointment (Florida Probate Rule 5.340)
7. Pay valid creditor claims and expenses — in the statutory priority order established by Florida Statutes § 733.707
8. File accountings — interim accountings as required; final accounting filed before petition for discharge
9. File Petition for Discharge — final distribution plan submitted to the court; objection period runs
10. Court enters Order of Discharge — closes the estate and releases the personal representative

Reference Table or Matrix

References

• Florida Probate Code — Chapters 731–735, Florida Statutes
• Florida Probate Rules — Florida Bar
• Florida Statutes § 733.702 — Limitations on Claims
• Florida Statutes § 732.401 — Descent of Homestead
• Florida Statutes § 732.102 — Spouse's Share of Intestate Estate
• Florida Statutes § 733.6171 — Compensation of Attorneys
• Florida Constitution, Article X, Section 4 — Homestead Exemption
• [Florida Circuit Court Jurisdiction — Florida