Those two sentences carry a lot of weight in South Florida, where a “small” estate on paper often turns out not to be small once a condo in Hollywood or a homestead in Boca Raton enters the picture. After two decades of probate work, the single most common mistake I see families make is assuming the streamlined route applies to them when the presence of real property quietly pushes them into formal administration. Let’s walk through how each procedure actually works, who qualifies, and where real estate changes the analysis.

What Counts as a “Small Estate” in Florida

Florida law does not use a single dollar threshold for everything. The phrase “small estate” is really shorthand for the two abbreviated procedures the Legislature created in Chapter 735 to spare families the cost and delay of a full formal administration under Chapter 733. The threshold that matters depends on which procedure you are trying to use, and on what the estate actually owns.

Two concepts do most of the work here:

• Probate assets. Only assets that pass through the estate count. Property with a beneficiary designation (life insurance, retirement accounts), jointly titled accounts with rights of survivorship, and assets held in a living trust are non-probate and generally fall outside the calculation entirely.
• Exempt property. Florida shields certain assets from creditor claims — most importantly the constitutional homestead, plus statutory exemptions under Section 732.402 for household furnishings (up to a capped value) and two motor vehicles. Exempt value is subtracted before you measure against the $75,000 ceiling for summary administration.

The practical effect: an estate can hold a $500,000 homestead and still qualify for summary administration, because protected homestead is excluded from the value “subject to administration.” Conversely, a single non-exempt brokerage account of $80,000 can knock an otherwise tiny estate out of summary administration and into formal probate.

Summary Administration Under Section 735.201

Summary administration is the workhorse of Florida small-estate practice. Under Section 735.201, it is available when either of these is true:

1. The value of the entire estate subject to administration in Florida, less property exempt from creditors, does not exceed $75,000; or
2. The decedent has been dead for more than two years — regardless of the estate’s value.

That two-year provision is genuinely useful and often overlooked. It exists because, after two years, the claims period for creditors has run under Section 733.710, which generally bars claims against the estate. I have closed estates worth well over $75,000 through summary administration purely because the family came to me three or four years after a parent passed and the property had simply sat untouched.

How the Process Works

Summary administration begins with a Petition for Summary Administration, signed and verified by the surviving spouse, if any, and by the beneficiaries. There is no personal representative appointed — that is the defining feature. Instead, the court enters an Order of Summary Administration that directly distributes the assets to the people entitled to them. The order itself becomes the document a bank, transfer agent, or county recorder relies on to release or retitle property.

A few moving parts deserve attention:

• Creditors. Because no estate is “administered” in the usual sense, the petitioners must make a reasonably diligent search for creditors and either pay or provide for known debts. Those who receive distributions can remain personally liable to creditors for up to two years after death, capped at the value they received. Publishing a Notice to Creditors is optional but often advisable to shorten that exposure.
• The will. If the decedent left a will, it must be deposited with the clerk and admitted before assets pass by summary administration.
• Homestead. Even in a summary proceeding, homestead status frequently has to be confirmed by a separate petition determining the property’s protected character. This is where real-property estates get complicated, and it is worth understanding the distinct probate tracks before you choose one — a point we cover in our overview of .

Where Real Property Complicates Summary Administration

This is the editorial heart of the matter for South Florida estates. Summary administration can include real estate, and it routinely does. But real property introduces three friction points that personal-property-only estates never face.

First, title insurance. A title underwriter looking at a future sale wants to see that the chain of title is clean. An Order of Summary Administration that distributes a parcel is acceptable to most underwriters, but only if the petition properly described the property, served the right parties, and addressed homestead. Sloppy petitions create title objections years later when the heirs try to sell.

Second, homestead determination. Florida homestead is not just a tax concept; it is a constitutional protection that controls who can inherit and whether creditors can reach the property. If the decedent was survived by a spouse and minor children, the homestead descends under specific constitutional rules that can override the will. Getting an explicit order determining homestead is what makes the property marketable.

Third, multiple heirs and partition. When a homestead passes to several adult children as tenants in common, summary administration gets the title transferred but does nothing to resolve disputes about whether to sell, rent, or keep the home. That is a separate problem, and one we see constantly in inherited Florida real estate.

Disposition of Personal Property Without Administration (Section 735.301)

Disposition without administration is the most stripped-down option Florida offers. It is not really a probate “case” — it is an informal application to the clerk to release a small amount of personal property to whoever paid the decedent’s final bills. Critically, it is unavailable if the estate includes any real property that is a probate asset.

Section 735.301 permits this disposition only when the decedent left no real property subject to administration and the probate estate consists solely of:

• Personal property that is exempt from creditors’ claims; plus
• Non-exempt personal property that does not exceed the sum of (a) preferred funeral expenses and (b) reasonable and necessary medical and hospital expenses from the last 60 days of the decedent’s final illness.

In practice, the funeral-expense priority runs up to $6,000 and the last-illness medical expenses up to a separate statutory cap. The logic is simple: if everything the decedent owned would be consumed by the costs of their final illness and burial, there is nothing left for creditors or heirs to fight over, so the law lets the person who advanced those costs be reimbursed without a formal case.

What the Process Looks Like

The applicant — usually the family member who paid the funeral home or the hospital — files a short verified statement or letter with the clerk in the county where the decedent resided. Most South Florida clerks (Miami-Dade, Broward, Palm Beach) publish their own fill-in forms. The applicant attaches:

• A certified death certificate;
• Paid receipts or bills for funeral and final-illness medical expenses;
• Evidence of the asset to be released — typically a final bank statement, an uncashed final paycheck, or a small tax refund.

If the clerk is satisfied, it issues a letter authorizing the holder of the asset (the bank, the employer, the Department of Revenue) to pay it over to the applicant. The filing fee is nominal — usually under $235 — and an attorney is not strictly required, though families often retain one when a bank balks or the paperwork gets refused.

The Real-Property Disqualifier

Because this site focuses on real-property-heavy estates, the bottom line bears repeating: if the decedent owned a home, a condo, vacant land, or any other Florida real estate that is a probate asset, disposition without administration is off the table. Even a half-interest in a timeshare can disqualify the estate. When real estate is involved, families must use summary administration (if they qualify) or formal administration. There is no clerk-counter shortcut for transferring real property in Florida.

Summary Administration vs. Disposition Without Administration

Here is how I frame the choice for clients:

• Use disposition without administration when there is no real estate, the only assets are exempt property plus a small sum, and someone needs reimbursement for final expenses. Think: a renter who died leaving a $4,000 checking account and a $7,000 funeral bill.
• Use summary administration when the probate estate (after exemptions) is $75,000 or less, the decedent has been dead more than two years, or real property needs to be retitled into the heirs’ names.
• Use formal administration when the estate exceeds the threshold, when there are contested claims, when ongoing management is needed, or when a personal representative must actively marshal assets and litigate.

The procedures are not interchangeable, and choosing wrong wastes filing fees and months of time. For estates that touch more than one state — a Florida snowbird who kept a co-op in Manhattan, for instance — you may need a Florida proceeding and an ancillary one up north; our colleagues handle the side of those dual-state estates regularly.

Common Pitfalls in South Florida Small Estates

A short list of the errors that send “simple” estates back to square one:

• Forgetting homestead is exempt. Families assume a $400,000 house disqualifies them from summary administration. It usually doesn’t, because protected homestead is excluded from the threshold.
• Trying to use disposition without administration to transfer a deed. The clerk will reject it; real property always needs administration.
• Ignoring the two-year creditor liability. Beneficiaries of a summary administration stay on the hook to creditors for two years. Where debts are uncertain, publishing a Notice to Creditors is cheap insurance.
• Skipping the homestead determination order. Without it, the heirs hold a cloud on title that surfaces at the worst possible moment — the closing table.

If you are weighing your options, it helps to first understand whether the decedent left a valid will, since that drives everything downstream — start with our primer on Florida wills, then review the mechanics on our Florida probate page. For estates that span jurisdictions or involve significant real property, our Florida probate team works alongside Morgan Legal’s broader practice; you can learn more about or simply reach out for a consultation.

Florida’s small-estate procedures are a gift when they fit — fast, inexpensive, and light on court involvement. The trick is matching the right tool to the estate, and in South Florida that almost always comes down to one question: is there real property, and is it homestead? Answer that correctly and the rest of the path tends to fall into place.

Frequently Asked Questions

What is the maximum estate value for summary administration in Florida?

Summary administration is available when the value of the probate estate subject to administration, less property exempt from creditors, does not exceed $75,000. It is also available regardless of value when the decedent has been dead for more than two years, because the creditor claims period has run.

Can I use disposition without administration if the estate includes a house?

No. Disposition of personal property without administration under Section 735.301 is unavailable whenever the estate includes real property that is a probate asset. Any home, condo, or land requires summary or formal administration to transfer title in Florida.

Does Florida homestead count toward the $75,000 summary administration limit?

Generally no. Constitutionally protected homestead is exempt from creditors’ claims and is therefore excluded from the value ‘subject to administration.’ That is why estates with a valuable homestead but few other assets often still qualify for summary administration.

Do I need a lawyer for disposition without administration?

Not strictly. Many South Florida clerks provide fill-in forms, and the filing fee is modest. However, families often retain counsel when a bank refuses to release funds, when it is unclear whether assets are truly exempt, or when there is any question about whether real property exists in the estate.

How long does summary administration take in Florida?

When uncontested and properly documented, summary administration often concludes within a few weeks to a couple of months, far faster than formal administration. Delays usually come from homestead determinations, missing creditor information, or incomplete petitions rather than the court’s calendar.

That distinction matters more in South Florida than almost anywhere else, because so many estates here are anchored by real property — a Miami-Dade condo, a Broward single-family home, a Palm Beach investment duplex. When the largest asset is a piece of land, the question of who inherits it (and who can sell it) gets complicated fast. This guide walks through how Florida decides, step by step.

What “dying intestate” actually means in Florida

“Intestate” simply means dying without a will, or with a will the court rejects as invalid. It happens far more often than people expect. Sometimes there was never a will. Sometimes the will exists but was never signed in front of two witnesses as Florida Statute 732.502 requires. Sometimes a homemade or out-of-state document fails on a technicality. In each case, the result is the same: the estate is distributed under the intestacy statutes, and the decedent’s actual wishes — even if everyone in the family knew them — carry no legal weight.

An estate can also be partially intestate. If a will gives away the house but says nothing about a brokerage account that was opened later, the unaddressed asset falls back into intestate succession. Both situations route through Florida probate.

What intestacy does and does not control

This is the single most misunderstood point I see with families. Intestate succession only governs assets that pass through probate. A large share of a typical estate often passes around it, by operation of law, regardless of whether there was a will:

• Jointly titled real estate with right of survivorship, or property held as tenants by the entireties between spouses, passes automatically to the survivor.
• Payable-on-death and transfer-on-death accounts go to the named beneficiary.
• Life insurance and retirement accounts (IRAs, 401(k)s) follow their beneficiary designations.
• Assets in a living trust are governed by the trust, not the intestacy statute.

So before anyone panics about “who gets the house,” the first job is figuring out how the property was actually titled. A home owned solely in the decedent’s name is a probate asset and is governed by intestacy. A home the couple owned together as tenants by the entireties usually never enters probate at all.

Florida’s order of intestate succession

The heart of intestacy is the “share and per stirpes” structure in Florida Statutes 732.102 and 732.103. The outcome depends almost entirely on two facts: whether the decedent left a surviving spouse, and whether there are descendants (children, grandchildren, and so on).

If there is a surviving spouse

Under Florida Statute 732.102, the spouse’s share works like this:

1. No descendants: the surviving spouse inherits the entire intestate estate.
2. All descendants are shared by both spouses, and the surviving spouse has no other children: the surviving spouse again takes the entire estate.
3. The decedent had descendants who are not also the surviving spouse’s children (a blended family): the surviving spouse receives one-half, and the descendants split the other half.
4. All descendants are shared, but the surviving spouse has at least one other descendant from another relationship: the surviving spouse takes one-half, and the decedent’s descendants take the other half.

Blended families are where intestacy most often surprises people. A second spouse who assumed she would inherit the marital home outright may find she shares it with stepchildren she barely knows.

If there is no surviving spouse

Florida Statute 732.103 sets the line of succession when there is no spouse, in this order:

1. To the descendants of the decedent (children, then grandchildren, per stirpes).
2. If none, to the decedent’s parents equally, or to the survivor of them.
3. If none, to the decedent’s brothers and sisters and the descendants of any deceased siblings.
4. If none, the estate splits between the paternal and maternal sides — grandparents, then aunts, uncles, and cousins.
5. As a final fallback, to the family of the decedent’s last deceased spouse.

“Per stirpes” means a deceased child’s share drops down to that child’s own children. If a decedent had three kids and one predeceased him leaving two children, those two grandchildren split their late parent’s one-third.

The homestead wrinkle that drives South Florida estates

Here is where probate without a will gets genuinely tricky in our market. Florida’s homestead protections, rooted in Article X, Section 4 of the Florida Constitution, can override the ordinary intestacy shares for the primary residence.

When the decedent is survived by a spouse and descendants, the homestead does not simply get split like other assets. Under Florida Statute 732.401, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants — or, the spouse may elect within six months to take an undivided one-half interest as a tenant in common instead. That election decision carries large practical and tax consequences, and the clock is short.

Homestead also affects who can force a sale. A life tenant generally cannot sell the property free and clear without the remaindermen’s cooperation, which is exactly how heirs end up locked in a stalemate over a house nobody can agree to sell. For real-property-heavy estates, the homestead analysis is often the whole ballgame. These are the very issues that make probate contentious even when no one disputes the family tree — a theme covered well in this discussion of the .

What the intestate probate process looks like

Procedurally, intestate probate tracks ordinary Florida probate, with a few twists because there is no will and no named personal representative.

• Petition for administration. An interested party files in the circuit court of the county where the decedent lived. Most home-anchored estates qualify for formal administration; smaller ones may use summary administration when the estate is under $75,000 or the death occurred more than two years ago.
• Appointing a personal representative. With no will naming one, Florida Statute 733.301 sets priority: the surviving spouse first, then the person chosen by a majority of the heirs, then the heir nearest in degree. The PR must generally be a Florida resident or a close relative, and the court issues Letters of Administration.
• Identifying heirs. The PR and attorney must establish exactly who the legal heirs are — sometimes requiring affidavits of heirship, especially in blended or estranged families.
• Inventory and creditor notice. The PR inventories assets, publishes a notice to creditors, and works through the claims period under Florida Statute 733.702.
• Distribution. After debts, taxes, and costs are paid, the remaining assets pass to the heirs in their statutory shares, and the estate closes.

Disputes are common when there is no will. Heirs argue over who should serve as PR, whether a missing will existed, or whether a late-surfacing document is genuine. Those fights resemble will contests in mechanics even when no will is on file; the procedural backbone is the same one described in this overview of . If you are facing a Florida estate dispute, our handle these matters daily.

How to avoid intestacy in the first place

None of this is inevitable. A properly executed will, a revocable living trust, correct property titling, and current beneficiary designations let you decide who inherits — and often keep the home out of probate entirely. For South Florida owners with significant real estate, coordinating the deed, the homestead status, and an estate plan is the difference between a clean transfer and years of litigation. You can start by reviewing our guidance on drafting a valid Florida will or our overview of the Florida probate process, and reach out through our contact page for a case-specific review.

The bottom line

Probate without a will in Florida is not lawless — it is governed by a precise statutory order that prioritizes spouses and descendants, layered with powerful homestead protections that can reshape who controls the family home. The system works, but it works on the legislature’s terms, not yours. If you want a say in who inherits your South Florida property, the only reliable answer is a current, properly executed estate plan.

Frequently Asked Questions

Who inherits if someone dies without a will in Florida?

Under Florida’s intestate succession statutes (Fla. Stat. 732.102 and 732.103), the estate passes first to the surviving spouse and descendants. The spouse takes everything if all children are shared and neither spouse has children from another relationship; in blended families the spouse and the decedent’s descendants each take half. With no spouse, the estate goes to descendants, then parents, then siblings, then more distant relatives.

Does the surviving spouse automatically get the house in Florida?

Not always. If the decedent is survived by both a spouse and descendants, Florida’s homestead law (Fla. Stat. 732.401) gives the spouse a life estate with a remainder to the descendants, unless the spouse elects within six months to take an undivided one-half interest as a tenant in common. Jointly titled property or property held as tenants by the entireties passes to the survivor automatically.

Is probate required if there is no will in Florida?

Yes, if the decedent owned probate assets in their sole name. Intestate succession only governs assets that pass through probate; jointly owned property, payable-on-death accounts, life insurance, and trust assets pass outside of probate by operation of law and are not affected by intestacy.

Who becomes the personal representative when there is no will?

Florida Statute 733.301 sets the priority: the surviving spouse first, then the person selected by a majority of the heirs, then the heir nearest in degree of relationship. The personal representative must generally be a Florida resident or a close relative and is appointed by the court through Letters of Administration.

How can I keep my Florida estate out of intestate succession?

Execute a valid will signed before two witnesses, or create a revocable living trust, and keep your property titling and beneficiary designations current. Coordinating the deed and homestead status with an estate plan is especially important for South Florida real estate, where an unplanned home transfer can trigger years of litigation among heirs.

In Florida we use the term “personal representative” rather than “executor” or “administrator.” The label is the same regardless of whether the decedent left a will. What changes is the source of authority and, sometimes, the level of court oversight. If you have been named in a will, or a relative just died and you expect to serve, this guide walks through what the job actually involves, with particular attention to estates that hold real property, which is where most South Florida probate matters get complicated.

Who Can Serve as a Personal Representative in Florida

Not everyone is eligible. Florida Statutes section 733.302 and section 733.303 set the qualifications, and they trip people up more often than you would expect. An individual personal representative must be at least 18, mentally and physically capable of performing the duties, and must not have been convicted of a felony. There is also a residency rule that surprises a lot of out-of-state families: a non-resident generally cannot serve unless they are a close relative of the decedent, such as a spouse, child, parent, sibling, or certain other blood relations, or are related to such a person.

This matters in South Florida, where the decedent may have retired to Boca Raton or Naples while their adult children live in New York or New Jersey. A son in Manhattan can serve for his late father in Palm Beach County; a longtime friend or business partner who lives out of state usually cannot. Banks and trust companies authorized to do business in Florida may also serve.

Getting Appointed: Letters of Administration

A personal representative has no legal power until the court issues Letters of Administration. Being named in the will is not enough on its own. The process begins by filing a petition for administration in the circuit court for the county where the decedent lived, depositing the original will (Florida Statutes section 732.901 requires the custodian of a will to deposit it with the clerk within 10 days of learning of the death), and obtaining the court’s order admitting the will to probate and appointing you.

Florida law strongly encourages, and in formal administration effectively requires, that the personal representative be represented by an attorney under Probate Rule 5.030. This is not a marketing pitch; it is the structure of Florida probate. The Letters are the document you will show banks, title companies, and brokerages to prove your authority to act.

The Core Fiduciary Duties

Once appointed, the personal representative’s responsibilities are defined largely by Chapter 733 of the Florida Statutes. The duties fall into a recognizable sequence, though several run in parallel:

• Take control of estate assets. Under section 733.607, the personal representative has the right to possession of the decedent’s property, except the homestead. This means securing bank accounts, vehicles, business interests, and real estate.
• Inventory the estate. Section 733.604 requires filing a verified inventory listing the estate’s assets and their estimated fair market value as of the date of death, generally within 60 days of issuance of Letters.
• Notify creditors. Publish a Notice to Creditors and serve known or reasonably ascertainable creditors directly, as required by section 733.2121.
• Pay valid claims and expenses. Review claims, pay legitimate ones in the statutory order of priority (section 733.707), and object to those that are improper.
• Handle taxes. File the decedent’s final income tax return and any required estate tax filings, and pay what is owed.
• Distribute the estate. Once debts, taxes, and expenses are resolved, distribute the remaining assets to the rightful beneficiaries and close the estate.

Throughout, the personal representative owes the estate the classic fiduciary duties of loyalty, care, and impartiality. You cannot favor one beneficiary over another, you cannot self-deal, and you must keep estate funds separate from your own. Sloppy bookkeeping is one of the fastest routes to a surcharge action, which is a lawsuit by beneficiaries to make you personally repay losses.

Notice to Creditors and the Claims Process

Creditor handling is the part of the job that imposes the most unforgiving deadlines. After publishing the Notice to Creditors, a claim must generally be filed within three months of the first publication, or, for a creditor who was served directly, within 30 days of service, whichever is later. Section 733.710 sets an outer limit: claims are barred two years after the decedent’s death regardless of whether notice was given.

The personal representative’s job is not to pay every bill that arrives. It is to evaluate each claim, pay the valid ones in the right order, and file an objection to any claim that is questionable, late, or unenforceable. Paying a barred or improper claim can itself be a breach of duty. When a claim is objected to, the creditor has a limited window, generally 30 days, to file an independent lawsuit to enforce it.

Real Property: The South Florida Wrinkle

Because so many Florida estates are real-property-heavy, the handling of real estate deserves its own discussion. Florida treats real property differently from cash and securities, and the rules surprise families who assume a house simply “passes through” the estate.

Homestead Is Special and Often Not an Estate Asset

Florida’s constitutional homestead protection (Article X, section 4 of the Florida Constitution) can cause a decedent’s primary residence to pass outside probate to a surviving spouse or descendants, free of most creditor claims. The personal representative usually does not take possession of homestead property and generally cannot use it to pay general creditors. But determining whether a property qualifies as protected homestead is a legal question, not a clerical one, and getting it wrong can expose the estate. Many South Florida probate disputes turn entirely on a homestead determination.

Non-Homestead Real Estate

Investment condos, rental duplexes, vacant lots, and second homes are different. These are typically probate assets the personal representative must manage: maintaining insurance, paying property taxes and association dues, collecting rent, and, when the will or the needs of the estate require it, selling the property. A personal representative who lets a Miami-Dade rental sit uninsured, or who misses an HOA assessment that ripens into a lien, may be personally answerable for the loss.

Selling Real Property to Pay Debts

If the estate lacks enough liquid assets to satisfy debts and expenses, real property may need to be sold. The authority to sell depends on the will’s terms and, in some cases, court authorization. Title companies will scrutinize the chain of authority closely, so clean Letters and, where needed, a court order are essential to closing.

For families whose loved one held property in more than one state, an additional layer applies: an out-of-state probate (called ancillary administration) may be required where the other property sits. This is common for snowbirds who kept a co-op in New York and a condo in Florida. Our colleagues at Morgan Legal handle the New York side, and it helps to understand when coordinating a two-state estate.

Accounting, Compensation, and Closing the Estate

Before the estate closes, the personal representative must account for everything that came in and went out. Section 733.508 and the related provisions require a final accounting and a plan of distribution to be served on interested persons, who then have an opportunity to object. Only after objections are resolved, distributions are made, and receipts are obtained can the personal representative petition for discharge under section 733.901, which formally releases them from further duty.

Personal representatives are entitled to reasonable compensation. Section 733.617 provides a presumptively reasonable fee based on a percentage of the value of the estate, and the attorney’s fees are governed by a parallel statute, section 733.6171. Many family members who serve choose to waive the fee, but they are not required to.

Personal Liability: Where It Goes Wrong

The role carries real exposure. A personal representative can be held personally liable for breaching fiduciary duties, mismanaging assets, distributing to the wrong people, ignoring creditors who were entitled to notice, or commingling funds. When disputes escalate, they often become full-blown litigation. If you anticipate friction among beneficiaries, or a beneficiary is already threatening to challenge the will or your conduct, it is worth understanding how typically unfold so you can document your decisions defensively from day one.

The single best protection is process: keep meticulous records, communicate with beneficiaries, never pay a claim or sign a deed without confirming you have authority, and lean on counsel for the judgment calls. Most surcharge actions we see were avoidable with better documentation.

Practical First Steps If You Have Just Been Named

1. Locate and safeguard the original will, and deposit it with the clerk within 10 days.
2. Secure the decedent’s home, vehicles, and valuables; change locks if needed and keep utilities and insurance active.
3. Order multiple certified copies of the death certificate.
4. Do not pay any debts yet; gather the bills and wait until the claims process tells you what is valid and in what order.
5. Avoid distributing anything to beneficiaries, however sympathetic, until creditors and taxes are addressed.
6. Consult a Florida probate attorney before filing, because formal administration requires one and early mistakes are the hardest to undo.

If the estate includes real estate in Florida, our firm focuses heavily on those property-driven probate matters; you can read more on our . For background on the estate-planning documents that shape every administration, see our overview of wills and what makes them valid in Florida, and if you are ready to talk through a specific estate, our Florida probate guide and contact page are the best starting points.

Serving as a personal representative is a serious responsibility, but it is manageable when you understand the sequence and respect the deadlines. The estates that go smoothly are almost always the ones where the personal representative moved deliberately, kept clean records, and asked for help before acting on the hard calls, not after.

Frequently Asked Questions

How long does a personal representative have to settle an estate in Florida?

There is no single fixed deadline, but formal administration commonly takes about 6 to 12 months, driven largely by the creditor claim period (claims are generally due within 3 months of the first published Notice to Creditors). Estates with real property to sell, tax issues, or litigation can take considerably longer. The personal representative must complete the inventory, resolve all valid creditor claims and taxes, file a final accounting, distribute assets, and then petition for discharge before the estate is officially closed.

Can a personal representative be paid in Florida?

Yes. Florida Statutes section 733.617 entitles a personal representative to reasonable compensation, with a presumptively reasonable amount calculated as a percentage of the estate’s value. Family members who serve often waive this fee, but they are not required to. Attorney’s fees are addressed separately under section 733.6171.

Does the personal representative control the homestead property?

Usually not. Florida’s constitutional homestead protection (Article X, section 4) can cause a primary residence to pass outside probate directly to a surviving spouse or descendants, shielded from most creditors. The personal representative generally does not take possession of protected homestead and cannot use it to pay general creditors. Whether a property qualifies as homestead is a legal determination and a frequent source of probate disputes in South Florida.

Can someone who lives outside Florida serve as personal representative?

Sometimes. Under Florida Statutes section 733.304, a non-resident can serve only if they are a close relative of the decedent, such as a spouse, child, parent, sibling, or other qualifying blood relative, or are related to such a person. A non-resident friend or unrelated business associate generally cannot serve, even if named in the will.

What happens if a personal representative breaches their duties?

They can be held personally liable. Beneficiaries or creditors may bring a surcharge action to recover losses caused by mismanagement, self-dealing, improper distributions, commingling of funds, or failure to notify and pay valid creditors. The court can also remove the personal representative. Careful record-keeping, separate estate accounts, and acting only with confirmed legal authority are the strongest protections against liability.

I have spent years guiding personal representatives through Florida probate, and the same truth surfaces again and again: the lawyer you pick in the first two weeks shapes everything that follows. A good fit can close a clean estate in months. A poor fit can stall a sale, trigger a will contest, or leave a fiduciary exposed. Below is how I would choose, if I were on your side of the desk.

Start by Understanding What a Florida Probate Attorney Actually Does

Probate is the court-supervised process of settling a deceased person’s estate: validating the will, appointing a personal representative, identifying and protecting assets, paying creditors, and distributing what remains. In Florida, the two main paths are formal administration and summary administration, governed by Chapter 735 and Chapter 733 of the Florida Statutes. Which path applies depends on the size and nature of the estate.

Here is the part many families miss. Under Florida Probate Rule 5.030, a personal representative in a formal administration generally must be represented by an attorney. This is not optional paperwork. The lawyer is not a luxury; the lawyer is a structural requirement of the case. So the question is never “do I need an attorney” — it is “which attorney.”

A capable probate lawyer will, at minimum:

• Determine whether the estate qualifies for summary administration, formal administration, or disposition without administration.
• Prepare and file the petition for administration and shepherd the appointment of the personal representative.
• Handle the Notice to Creditors and the creditor claim period under Florida Statutes section 733.701 and following sections.
• Address homestead, the elective share, family allowance, and exempt property.
• Coordinate the sale or transfer of real estate and clear title.
• Prepare accountings and the petition for discharge that closes the estate.

Why Real-Estate Experience Is Non-Negotiable in South Florida

Most South Florida estates are not piles of cash. They are condos in Miami-Dade, single-family homes in Broward, beach properties in Palm Beach, and the occasional investment parcel that nobody quite has the paperwork for. When real property dominates an estate, probate stops being a forms exercise and becomes a title problem.

That changes who you should hire. A probate attorney who rarely touches real estate can technically open your case, but watch what happens when the family wants to sell. Title underwriters in Florida are cautious about estate sales. They scrutinize the chain of authority, the homestead question, and whether the personal representative actually has power to convey. If your lawyer does not anticipate those questions, the closing slips, the buyer walks, and the carrying costs keep bleeding the estate.

The homestead trap

Florida’s homestead protection, rooted in Article X, Section 4 of the Florida Constitution, is one of the most powerful and most misunderstood doctrines in the state. Protected homestead generally passes outside the probate estate and is shielded from most creditors, but the rules on who inherits it are rigid when a spouse or minor child is involved under section 732.401. I have watched out-of-state lawyers and generalists treat the family home like any other asset and create a tangle that takes a separate court determination to unwind. Ask any prospective attorney to explain homestead to you in plain English. If they fumble it, keep looking.

Ancillary probate for non-resident decedents

South Florida is full of properties owned by people who lived their final years up north. When someone domiciled in another state dies owning Florida real estate, the family often needs an ancillary administration under section 734.102 to clear Florida title, even if the main estate is being handled elsewhere. A firm with a multi-state footprint is genuinely useful here. As an illustration of how a coordinated firm handles this, Morgan Legal Group runs both a and a , which is exactly the kind of cross-border alignment that keeps a New York estate with a Florida condo from being handled by two firms that never speak to each other.

Look for County-Specific Experience

Florida probate is statewide law applied through local courts, and local practice varies. The clerk’s office in Miami-Dade does not operate identically to the one in Broward or Palm Beach. Judges have preferences. Some divisions move quickly; others are perpetually backed up. An attorney who appears regularly in your county knows the e-filing quirks, the local form preferences, and which judicial assistant to call when something stalls.

When you interview, ask directly: How many estates have you administered in this specific county in the past two years? The answer tells you whether you are hiring someone who will be learning on your dime.

Questions to Ask Before You Hire

Treat the first meeting like an interview, because it is. The good lawyers expect this and welcome it. Bring this list:

1. How will I be charged? Florida law under section 733.6171 sets out a fee structure for attorneys based on a percentage of the estate’s compensable value, but that statute is a default — fees can also be hourly or flat, and the statutory percentage is presumed reasonable, not mandatory. Get the basis in writing.
2. Who actually does the work? The named partner who wins you over may hand the file to a paralegal. That is not inherently bad, but you deserve to know who answers your calls.
3. What is your realistic timeline? A straightforward formal administration in Florida typically runs roughly six months to a year, in part because of the mandatory creditor claim period. Anyone promising a 30-day wrap on a formal estate is overselling.
4. Have you handled estate real-estate sales and title clearance? If property is involved, this is the whole ballgame.
5. What happens if the will is challenged? Not every estate ends up in litigation, but you want to know your lawyer can defend the will if it comes to that.

Understand Florida Probate Attorney Fees Before You Sign

Fees confuse and frighten families more than any other part of probate, often needlessly. Under section 733.6171, the presumptively reasonable attorney fee is calculated as a graduated percentage of the estate’s value — for example, a set amount for estates up to $40,000, with declining percentages as value rises. Crucially, that figure is based on the compensable value of the estate, and it is a starting point that can be adjusted up or down for extraordinary services or simpler-than-usual cases.

Two practical points. First, protected homestead is generally excluded from the value used to compute the statutory fee, which matters enormously in real-estate-heavy estates — a $700,000 home that passes as homestead should not be padding your attorney’s percentage. Second, many experienced Florida probate firms offer flat or hourly fees that come in below the statutory percentage for clean estates. Ask. A lawyer who refuses to discuss the fee basis transparently is showing you something important.

Red Flags That Should Stop You

Some warning signs are loud, others quiet. Watch for these:

• No clear engagement letter. Every legitimate Florida probate engagement should be in writing, spelling out scope and fees.
• Vague answers about homestead or creditor claims. These are core competencies, not edge cases.
• Guaranteed outcomes or suspiciously short timelines. The creditor period alone sets a floor on how fast a formal estate can close.
• No malpractice insurance or no Florida Bar standing you can verify. Check the lawyer at the Florida Bar’s public directory before you sign anything.
• Poor communication during the courtship. If they are slow to respond while trying to win your business, imagine the responsiveness once they have it.

When Probate Turns Contested

Most Florida estates settle without a fight. But when an heir believes the will was the product of undue influence, fraud, or a decedent who lacked capacity, the case shifts from administration to litigation. A will contest in Florida is a different animal, with discovery, depositions, and trial. The skill set is distinct from routine administration.

If your situation carries that risk — a recently changed will, a caregiver who suddenly inherited, a blended family with friction — choose a firm that litigates, not just administers. The mechanics of challenging a will differ by state, and it is instructive to see how a multi-jurisdiction firm frames the issue; Morgan Legal Group’s overview of walks through the grounds and procedure in a way that mirrors the analysis a Florida litigator runs, even though the controlling statutes and deadlines differ here. The lesson for choosing your attorney: confirm they have actually tried these cases, not merely filed them.

Putting It Together

The strongest Florida probate attorney for your family is rarely the one with the flashiest ad. It is the one who handles Florida estates day in and day out, files regularly in your county, speaks fluently about homestead and creditor claims, has real title-clearance experience for the property in your estate, and explains fees without flinching. Interview at least two. Ask hard questions. Trust the lawyer who answers plainly.

If you want to understand the surrounding documents before you choose — how a valid Florida will is structured, or how the overall administration process unfolds — start with our overview of Florida wills and our guide to the Florida probate process. When you are ready to talk through your specific estate, reach out to our South Florida probate team and we will tell you honestly what your case will take.

Frequently Asked Questions

Do I need a lawyer for probate in Florida?

In most cases, yes. Under Florida Probate Rule 5.030, a personal representative in a formal administration must generally be represented by an attorney unless the personal representative is the sole interested person. Summary administration and disposition without administration may have narrower exceptions, but for nearly all estates with real property, an attorney is required.

How much does a Florida probate attorney cost?

Florida Statutes section 733.6171 sets a presumptively reasonable fee as a graduated percentage of the estate’s compensable value, but that is a default, not a mandate. Protected homestead is generally excluded from that value, and many firms offer flat or hourly fees that beat the statutory percentage on clean estates. Always get the fee basis in writing before you sign.

How long does probate take in Florida?

A straightforward formal administration typically takes about six months to a year. The mandatory creditor claim period under Florida Statutes section 733.701 sets a practical floor, so any estate cannot close before creditors have had their statutory window to file claims. Contested estates or those with complex real estate take longer.

What if the deceased lived out of state but owned property in Florida?

When a non-resident dies owning Florida real estate, the family usually needs an ancillary administration under Florida Statutes section 734.102 to clear Florida title, even if the main estate is being administered in another state. A firm with multi-state coordination is especially valuable in these situations.

How do I verify a Florida probate attorney is legitimate?

Check the attorney’s standing and disciplinary history through the Florida Bar’s public online directory, confirm they carry malpractice insurance, and ask how many estates they have administered in your specific county in the last two years. A clear written engagement letter is non-negotiable.

Those two requirements sound clerical. In practice they are where a surprising number of Florida estates go off the rails, especially estates that are heavy on real property. A condo in Aventura, a homestead in Boca, a rental duplex in Hialeah, and a vacant lot the decedent forgot to mention each carry their own valuation, carrying-cost, and disclosure problems. This article walks through what the law actually requires, what trips people up, and how a personal representative protects themselves.

What Is the Estate Inventory in Florida Probate?

The inventory is a sworn schedule of the decedent’s probate assets and their estimated fair market value as of the date of death. Under Florida Probate Rule 5.340, the personal representative files it with the court and serves it on the Department of Revenue (when applicable), the surviving spouse, each heir at law in an intestate estate, each residuary beneficiary in a testate estate, and any other interested person who requests it in writing.

The 60-day clock runs from the date letters of administration issue, not from the date of death and not from the date the petition was filed. That distinction matters because gathering values takes time, and the deadline can arrive before a personal representative has even located every account.

What Belongs on the Inventory

Only probate assets go on the inventory. Those are assets titled in the decedent’s sole name with no automatic transfer mechanism. The usual categories:

• Real property owned individually or as a tenant in common, with a description sufficient to identify it and its date-of-death value
• Bank and brokerage accounts with no payable-on-death or transfer-on-death designation
• Vehicles, boats, and other titled personal property
• Business interests, partnership shares, and closely held company stock
• Tangible personal property such as jewelry, art, and furnishings
• Promissory notes and money owed to the decedent

Assets that pass outside probate generally do not belong on the inventory: jointly held property with rights of survivorship, life insurance and retirement accounts with living named beneficiaries, and assets already titled in a revocable trust. One important Florida wrinkle is homestead. Protected homestead usually passes outside the probate estate and is not subject to most creditors, but its treatment is nuanced, and many practitioners list it on a separate schedule or note its protected status rather than ignoring it. When in doubt, disclose and characterize rather than omit.

Valuing Real Property: The Hard Part of a Property-Heavy Estate

For estates built on Florida real estate, valuation is the single biggest source of disputes and amended filings. The standard is fair market value as of the date of death, not the assessed value on the county property appraiser’s website and not the price the family hopes to get.

The county assessment is a useful starting reference, but Florida’s Save Our Homes assessment cap routinely makes the assessed value far lower than the true market value of a long-held homestead. Relying on it can understate the estate, distort beneficiary shares, and create problems if the property later sells for much more.

For anything beyond a modest parcel, a date-of-death appraisal from a licensed Florida appraiser is the cleaner path. It supports the inventory value, it establishes a stepped-up cost basis for the beneficiaries’ future capital gains, and it gives the personal representative a defensible number if a beneficiary later argues the property was sold too cheaply.

Practical Issues That Surface With Real Property

• Carrying costs. Taxes, insurance, HOA dues, and mortgage payments keep accruing during administration and all flow through the accounting.
• Income. Rents collected after death are estate income and must be tracked separately from date-of-death value.
• Title defects. Old liens, code-enforcement fines, and unrecorded interests can surface only when the property is listed or sold.
• Out-of-county or out-of-state parcels. A Florida resident who owned land in another state may trigger ancillary administration there.

The Estate Accounting: Tracking Every Dollar

While the inventory is a snapshot at death, the accounting is the moving picture of administration. Under Florida Probate Rule 5.346, a fiduciary accounting must show all cash and property the personal representative received, all disbursements made, all distributions, and the assets remaining on hand at the end of the accounting period. The rule sets out a specific format, including a statement of receipts and disbursements and a statement of assets at their carrying values.

The accounting is the personal representative’s report card. It demonstrates that estate money paid estate obligations and not personal ones, that creditor claims were handled in the statutory priority, and that each beneficiary received the correct share. Done well, it is the document that earns the personal representative a discharge and protection from later claims.

When an Accounting Is Required and When It Can Be Waived

A formal final accounting is required before a typical formal administration closes, but all interested persons can waive it in writing. Waivers are common in harmonious family estates where everyone trusts the personal representative. They are a mistake whenever there is tension, a beneficiary who feels left out, or a personal representative who is also a major beneficiary. Without an accounting, that personal representative gives up the cleanest evidence that the administration was honest.

Beneficiaries also have an affirmative right to information. Under Florida Statutes section 733.604 and related provisions, interested persons can demand the inventory and supporting records, and a personal representative who stonewalls invites court intervention and personal liability.

Deadlines, Amendments, and Personal Liability

The headline dates for a Florida personal representative are the 60-day inventory deadline and the duty to render the final accounting before closing. Beyond those, the personal representative owes continuing fiduciary duties to keep records, segregate estate funds, and avoid self-dealing.

When a new asset turns up, or a value proves wrong, the fix is a supplementary or amended inventory, not silence. Amending is routine and expected; concealment is what generates surcharge actions. A personal representative who breaches these duties can be removed under Florida Statutes section 733.504 and held personally liable to make the estate whole for losses caused by the breach.

This is also where probate quietly turns into litigation. Disputes over a lowball property value, a missing rental account, or an accounting that does not add up are common triggers for . The principles cross state lines: a fiduciary who cannot account for the estate is exposed whether the courthouse is in Miami or Manhattan, and the firms that handle complex in high-value markets see the same accounting failures repeated.

How a Personal Representative Protects Themselves

The defensive playbook for a Florida personal representative is not complicated, but it has to be followed from day one:

1. Open a dedicated estate bank account and never commingle personal funds.
2. Order date-of-death appraisals for real property before guessing at value.
3. Keep every receipt, statement, and invoice from the moment letters issue.
4. Track real-property carrying costs and rental income in their own ledgers.
5. File the inventory on time and amend it the moment new facts appear.
6. Decline accounting waivers when family relationships are strained.

Most estate accounting problems are not the result of dishonesty. They come from a well-meaning relative who took on the role, never opened a separate account, paid a few bills from a personal card, and could not reconstruct the trail two years later. The inventory and accounting requirements exist to prevent exactly that.

If you are administering a Florida estate with real property, it is worth getting the framework right before the 60-day clock runs out. You can review related material on our Florida probate overview and how a will fits into the process on our wills page, or speak with a Florida probate attorney through Morgan Legal’s . When you are ready to talk through your specific estate, contact our office.

Frequently Asked Questions

What is the deadline to file the inventory in a Florida probate?

Under Florida Probate Rule 5.340, the personal representative must file the inventory within 60 days after letters of administration are issued. The clock runs from the date letters issue, not from the date of death or the date the petition was filed, and the inventory must value assets as of the date of death.

Do I have to list the homestead on the Florida estate inventory?

Protected homestead generally passes outside the probate estate and is shielded from most creditors, so it is treated differently from ordinary probate assets. Many Florida practitioners disclose it on a separate schedule and note its protected status rather than omitting it entirely. Because homestead treatment is fact-specific, it is best to confirm characterization with a probate attorney.

Can beneficiaries waive the final accounting in a Florida estate?

Yes. All interested persons can waive a formal final accounting in writing under the probate rules, and waivers are common in harmonious estates. However, a personal representative who is also a major beneficiary, or who faces a strained family, should usually decline the waiver, because the accounting is the strongest evidence that the administration was handled honestly.

How should real property be valued for the Florida probate inventory?

Real property is reported at fair market value as of the date of death, not the county assessed value. Because Florida’s Save Our Homes cap often makes assessed values far below market value, a date-of-death appraisal from a licensed Florida appraiser is the cleaner approach. It supports the inventory figure and establishes a stepped-up cost basis for beneficiaries.

What happens if a personal representative cannot account for estate assets?

A personal representative who breaches fiduciary duties can be removed under Florida Statutes section 733.504 and held personally liable to repay the estate for losses caused by the breach. Disputes over property values, missing accounts, or an accounting that does not add up are common triggers for probate litigation and surcharge actions.

That is the clean version. In practice, South Florida estates are rarely that tidy, and the reason is almost always real property. A Boca condo held with a now-deceased co-owner, a Broward homestead the kids assumed was “automatic,” a Miami brokerage account with a beneficiary form nobody updated after a divorce: each of these can either sail past probate or drag the whole estate into court. Below is how an experienced Florida probate attorney sorts out which is which.

Why some assets skip Florida probate entirely

Probate is the court-supervised process of retitling assets that have no other mechanism to transfer at death. The key word is mechanism. If an asset already carries instructions for what happens when the owner dies, the court has nothing to administer. Two broad mechanisms do this work in Florida:

• Survivorship in title. When two or more people own property “with right of survivorship,” the survivor automatically absorbs the deceased owner’s share. There is no estate to probate as to that asset.
• Contractual beneficiary designations. Life insurance, retirement accounts, and POD/TOD accounts pay according to the contract or designation form, not according to a will. The named beneficiary collects directly from the institution.

Because these transfers happen by law or contract, a will cannot override them. This surprises families constantly. A father can leave a meticulous will dividing everything equally among three children, but if the bank account names only the eldest as POD beneficiary, that account belongs to the eldest alone. The will never touches it.

The forms of joint ownership Florida recognizes

How real property and accounts are titled determines everything. Florida recognizes three principal forms of co-ownership, and only two of them avoid probate.

Tenancy by the entirety (married couples)

Reserved for spouses, tenancy by the entirety treats the couple as a single legal unit. When one spouse dies, the survivor owns the whole, automatically, with no probate. Florida law presumes that real property conveyed to a married couple is held this way, and the form carries a creditor-protection bonus: a creditor of only one spouse generally cannot reach entireties property. For South Florida couples whose largest asset is the marital home, this is often the single most important titling fact in the estate.

Joint tenancy with right of survivorship (JTWROS)

Available to anyone, JTWROS gives each owner an equal, undivided interest, and the last surviving owner takes all. It is common between unmarried partners, a parent and an adult child, or siblings who inherited property together. Florida does not presume survivorship for non-spouses, however. The deed or account agreement must expressly state “with right of survivorship” or equivalent language. Leave it out and you may have created the third form by accident.

Tenancy in common (no survivorship)

This is the default for non-spouses when survivorship language is missing. Each owner holds a distinct, transferable share, and at death that share passes through the deceased owner’s estate, not to the co-owners. Tenancy in common does not avoid probate. The decedent’s fractional interest in the property must be administered, which is exactly how a single rental duplex can force an otherwise simple estate into formal administration.

Beneficiary-designated assets and how they transfer

Designations are creatures of statute and contract. The main categories Florida families encounter:

1. POD bank accounts. Governed by Florida Statutes § 655.82, a payable-on-death designation lets the named beneficiary claim funds directly from the bank on the owner’s death. Note the statute’s trap: a POD designation on a multiple-party account without right of survivorship is ineffective, and naming the account a tenancy in common defeats survivorship.
2. TOD securities. Florida’s Uniform Transfer-on-Death Security Registration Act (Chapter 711) lets brokerage accounts, stocks, and bonds register in beneficiary form, passing to the survivor outside probate.
3. Retirement accounts and life insurance. IRAs, 401(k)s, annuities, and life policies pay the beneficiary on the contract. These never enter probate unless the beneficiary is the estate itself, or every named beneficiary has predeceased with no contingent named.
4. Lady Bird (enhanced life estate) deeds and Florida TOD deeds for real property. Increasingly used to pass a Florida home to the next generation without probate while preserving the owner’s control during life.

The recurring failure point is not the mechanism, it is the maintenance. Stale designations naming an ex-spouse, a deceased parent, or a minor child create some of the messiest disputes I see, and a will cannot fix them after death.

When “non-probate” assets get pulled back into probate

Here is where the clean rule frays. Several Florida doctrines reach through survivorship and beneficiary forms and pull value back toward the estate or the court.

The elective share counts non-probate assets

A surviving spouse in Florida is entitled to an elective share of 30% of the elective estate under § 732.2065. Crucially, § 732.2035 defines that elective estate broadly to include many non-probate transfers, jointly held accounts, POD/TOD assets, certain revocable transfers, and more. A spouse cannot be disinherited simply by routing everything through beneficiary forms. Those assets are counted, and the surviving spouse can compel a payout even from property that “avoided” probate.

Florida homestead has a mind of its own

The homestead is the asset most likely to surprise families, and it sits at the heart of real-property-heavy estates. Under Florida’s constitution and § 732.401, a homestead owned by a married decedent cannot be freely devised if there is a surviving spouse or minor child. Absent a valid waiver, the surviving spouse takes a life estate with a vested remainder to the descendants, or may elect within six months to take an undivided one-half interest as a tenant in common. The election must be recorded in the county where the property sits. Even when no probate is otherwise needed, families frequently must open a proceeding to obtain an order determining homestead status, which confirms the property’s protected character and clears title for sale or refinance.

Failed, ambiguous, or contradicted designations

Survivorship language that was never added, a beneficiary who predeceased with no contingent, a “Totten trust” account challenged as a convenience account, a deed that lists co-owners but omits the magic words, each of these can convert a supposed non-probate asset into a probate asset. Litigation over whether a joint account was a true gift of survivorship or merely added for the parent’s bill-paying convenience is a Florida staple. For a fuller picture of where administrations go sideways, this overview of tracks closely with what we see in Florida estates.

Real property changes the calculus

For estates whose value is concentrated in Florida real estate, titling deserves its own audit well before death. A few points worth sitting with:

• Adding an adult child to a deed as a joint tenant is a completed gift of a present interest, with potential gift-tax filing, loss of the full step-up in basis on the gifted portion, and exposure of the home to that child’s creditors and divorce. A Lady Bird deed usually accomplishes the probate-avoidance goal without those costs.
• A property held as tenants in common by an unmarried couple will require probate of the decedent’s share, even if both names are on the deed. Survivorship is not assumed.
• Out-of-state owners who die holding only a Florida vacation home or investment property often trigger ancillary administration in Florida, a separate proceeding layered on top of the home-state estate.

If you want to map how your specific deeds and designations will behave, our Florida probate overview walks through the administration types, and our notes on wills and devise of homestead explain why a will alone rarely controls a Florida home.

Practical steps to keep assets out of probate the right way

Probate avoidance is a worthy goal, but only when it is coordinated with the rest of the plan. The asset-by-asset shortcuts that look efficient often collide with spousal rights, homestead, and basis planning. A sound approach:

1. Inventory every asset and write down exactly how it is titled and who is named.
2. Reconcile beneficiary forms against the will or trust so they tell one consistent story.
3. Confirm survivorship language is actually present on non-spousal deeds and accounts.
4. Address the homestead deliberately, with a deed strategy, not by assumption.
5. Re-check designations after every divorce, death, birth, and move to or from Florida.

Whether you are planning an estate or administering one, coordinated counsel matters. Our Florida team handles these issues at , and clients with assets in both states often work with our New York office on for a single, integrated plan. To review your own situation, contact our office.

The bottom line

Jointly held and beneficiary-designated assets are powerful probate-avoidance tools, and in most cases they work exactly as intended. But Florida’s elective share, homestead protections, and survivorship formalities can quietly override the labels on your accounts and deeds. The estates that go smoothly are the ones where titling, designations, and the will were checked against each other while everyone was still alive.

Frequently Asked Questions

Do beneficiary-designated accounts go through probate in Florida?

Generally no. Accounts with a valid payable-on-death (POD) or transfer-on-death (TOD) designation, along with life insurance and retirement accounts naming a living beneficiary, pass directly to that beneficiary outside probate. They only enter probate if the estate is named as beneficiary or if every named beneficiary has died with no valid contingent.

Can a will override a joint title or beneficiary designation in Florida?

No. Survivorship titling and beneficiary designations transfer by law or contract, not by will. A will cannot redirect a jointly held survivorship asset or a POD/TOD account, no matter what it says. That is why designations must be reviewed and kept consistent with the rest of your plan.

Does a surviving spouse have rights to assets that avoided probate?

Yes. Florida’s elective share gives a surviving spouse 30% of the elective estate under Section 732.2065, and Section 732.2035 defines that estate to include many non-probate transfers such as joint accounts and POD/TOD assets. A spouse generally cannot be disinherited by routing everything through beneficiary forms.

Why does my parent's home still need probate if I was on the deed?

It depends on the titling. If you and your parent held the home as tenants in common, the parent’s share passes through their estate and must be probated. Survivorship is not assumed for non-spouses in Florida; the deed must expressly say ‘with right of survivorship.’ Florida homestead rules can also require a court order to confirm the property’s status before sale.

What is an order determining homestead and why might I need one?

It is a probate court order confirming that a Florida property qualified as the decedent’s protected homestead and identifying who inherits it under the constitution and Section 732.401. Title companies and lenders often require it before a homestead can be sold or refinanced, even when little other probate is needed.

What’s the very first step?

Locate the original will and secure the decedent’s property. Florida law (§732.901) requires the custodian of an original will to deposit it with the clerk of court in the county where the decedent lived within 10 days of learning of the death. Don’t hold onto the original indefinitely — depositing it is a legal obligation, even if formal probate hasn’t started.

How do I open probate?

Determine which type of administration fits. Florida offers summary administration (for smaller or older estates) and formal administration (the full process, with a personal representative appointed by the court). For formal administration, you petition the circuit court, and the judge issues Letters of Administration authorizing the personal representative to act. Florida generally requires a licensed attorney to represent the personal representative in formal administration.

What does the personal representative actually do?

Once appointed, the personal representative’s core checklist includes:

• Obtain Letters of Administration and a tax ID (EIN) for the estate.
• Open an estate bank account and gather all assets into it where appropriate.
• Inventory and value assets — filing a verified inventory with the court.
• Identify and notify known creditors directly, and publish a Notice to Creditors so unknown creditors have a limited window to file claims.
• Pay valid claims, administration expenses, and any final income taxes.
• Distribute remaining assets to beneficiaries and file for discharge.

How long do creditors have to make a claim?

Generally, creditors must file claims within three months of the first publication of the Notice to Creditors, or 30 days from being served, whichever is later. Handling this notice correctly is one of the most important protective steps — it limits the window in which the estate can be pursued.

Do I need to deal with the homestead separately?

Often, yes. If the decedent owned a Florida homestead (Article X, Section 4), the personal representative typically files a petition to determine homestead status. This confirms the property’s protected character and helps establish clean title for the heirs, since homestead generally is not a probate asset subject to most creditors.

What about taxes?

Florida has no state estate or inheritance tax, which simplifies the checklist considerably. You may still need to file the decedent’s final federal income tax return and, for larger estates, a federal estate tax return. A final accounting to beneficiaries is required before closing.

How does the estate close?

After claims are resolved and assets distributed, the personal representative files a final accounting and a petition for discharge. Once the court approves, the personal representative is released from further responsibility.

Consult a Florida attorney

Every estate is different — a missed creditor notice or an overlooked homestead petition can create real problems later. Because formal administration in Florida usually requires legal representation anyway, having a Florida probate attorney guide the checklist from the start saves time and protects the personal representative personally.

Below is a working walk-through of how will contests actually unfold in South Florida probate courts, with particular attention to estates whose main asset is real property—the homestead, a duplex in Broward, a condo in Miami-Dade—because that is where most of the money, and most of the fighting, tends to live.

What it legally means to contest a will in Florida

A will contest is a formal challenge filed in the probate proceeding asserting that the document offered for probate is not the decedent’s valid last will. Florida law treats a will that has been admitted to probate as presumptively valid, so the burden of proof generally shifts to whoever is attacking it once the formalities appear to have been met. The Florida Probate Code—Chapters 731 through 735 of the Florida Statutes—governs the whole process, and the procedural mechanics live in the Florida Probate Rules.

Two things matter from the start. First, a contest is adversarial litigation grafted onto an otherwise administrative case; it has pleadings, discovery, depositions, and frequently a trial. Second, the clock is unforgiving. Miss the window to object and your right to challenge can be lost permanently, even if you had an airtight case.

Who has standing to challenge a Florida will

Not everyone gets to fight. To contest a will you must be an “interested person” under Florida Statutes § 731.201(23)—someone whose interest in the estate would be affected by the outcome. In practice that usually means:

• A beneficiary named in the will being challenged.
• A beneficiary under a prior will who would inherit more if the current one fails.
• An heir at law (a spouse, child, or other relative) who would take under Florida’s intestacy statutes if there were no valid will at all.
• A creditor, in narrower circumstances tied to their claim.

The standing question is not academic. If invalidating the will would not actually change what you receive—because an earlier will or the intestacy rules leave you in the same spot—you may have no standing to proceed, and the personal representative’s attorney will say so quickly.

The grounds for contesting a will

Florida recognizes a defined set of grounds. A vague sense of betrayal is not one of them. These are the arguments that actually move a probate judge.

1. Improper execution (failure of formalities)

Florida Statutes § 732.502 sets out exactly how a will must be signed: in writing, signed by the testator at the end, in the presence of two attesting witnesses, who must each sign in the presence of the testator and of each other. These are not technicalities a court will wave away. If the witnesses were not both present, or the testator never signed, the will fails. Out-of-state wills are honored if they were valid where executed, but a will signed loosely at a kitchen table—without proper witnessing—is a classic, winnable contest.

2. Lack of testamentary capacity

The testator must have understood, at the moment of signing, the nature and extent of their property, the natural objects of their bounty (typically family), and the practical effect of making a will. Florida’s threshold is lower than people assume—a person with dementia can have a lucid interval—so a diagnosis alone rarely wins. What wins is contemporaneous evidence: medical records, the drafting attorney’s notes, the timing of the signing relative to a hospitalization, and witness testimony about the testator’s actual state that day.

3. Undue influence

This is the most common ground in Florida, especially in elder estates. Undue influence means someone overpowered the testator’s free will so the document reflects the influencer’s wishes, not the decedent’s. Under the framework drawn from In re Estate of Carpenter and codified in part at § 733.107(2), a rebuttable presumption of undue influence arises when a person who (a) is a substantial beneficiary, (b) had a confidential relationship with the decedent, and (c) was active in procuring the will. “Active procurement” is proven through a cluster of factors—presence at the signing, recommending the attorney, knowing the contents in advance, securing witnesses, keeping the will afterward, and so on. When the presumption applies, the burden shifts to the influencer to prove the will was clean.

4. Fraud, duress, and mistake

Fraud comes in two flavors: fraud in the execution (the testator was deceived about what they were signing) and fraud in the inducement (lied to about facts that shaped how they distributed property). Duress involves coercion through threats. Mistake is the narrowest and hardest—Florida courts are reluctant to rewrite an unambiguous will based on a claimed error.

5. Revocation and superseding documents

Sometimes the contest is not that the will is defective but that it was revoked—by a later will, a codicil, or a physical act like tearing it up under § 732.505–732.506. A surprising number of disputes turn on which of several documents is the real last word.

The process, step by step

Here is how a contest typically proceeds once probate opens in a Florida circuit court’s probate division.

1. The will is offered for probate. The petitioner asks the court to admit the will and appoint a personal representative.
2. Notice of Administration is served. Under § 733.212, this notice triggers the contest deadline. Read it carefully—it tells you exactly how long you have.
3. You file an objection or a petition to revoke probate. Under § 733.109, an interested person may petition to revoke probate of a will. This is the formal vehicle for the contest.
4. The case becomes adversarial. Per the Florida Probate Rules, formal notice and full litigation procedure attach. Discovery follows: document requests, interrogatories, and depositions of the witnesses, the drafting lawyer, and treating physicians.
5. Mediation. Most Florida probate courts require mediation. A large share of contests settle here, often because litigation costs eat into the very estate everyone is fighting over.
6. Trial. If no settlement, a judge (probate trials are typically non-jury) hears the evidence and rules on validity.

The mechanics resemble probate litigation in other states, though deadlines and presumptions differ. If part of an estate or a related dispute reaches into New York, the analysis shifts—our colleagues explain the parallel framework in their overview of an , and they break down how the format changes depending on the estate in their guide to the . For Florida-specific representation, see our discussion of .

The deadlines that decide cases

Few things sink a meritorious challenge faster than a missed date. The key windows:

• After Notice of Administration: an interested person generally has three months from service to object to the will’s validity, the venue, or the personal representative’s qualification (§ 733.212(3)). Objections not filed within this period are barred.
• If you were not served and learn of the probate later, your timing is governed by the revocation statute and the general two-year limitations backstop in § 733.710—but do not rely on the long tail; act immediately.
• Creditor claims run on their own separate clock and should not be confused with the contest deadline.

The takeaway: if you receive any probate paper from a Florida court, treat it as time-sensitive and get counsel within days, not months.

Why real-property estates raise the stakes

In South Florida, the contested asset is usually dirt and a roof. That changes the calculus in concrete ways.

First, homestead property has special constitutional protection in Florida and often passes outside the ordinary will scheme. Article X, Section 4 of the Florida Constitution and § 732.401 restrict how a homestead can be devised when there is a surviving spouse or minor child. A will provision that violates those rules can be invalid as to the homestead regardless of how the rest of the contest comes out—so a real-property estate may involve a homestead fight layered on top of, or instead of, a classic will contest.

Second, title gets clouded. A pending contest can stall a sale or refinance because no clean title can pass while ownership is disputed. That pressure is real, and it is why many real-estate-heavy contests settle at mediation: the parties want to liquidate or keep the property, and protracted litigation freezes everyone.

Third, valuation becomes a battleground. When the estate is mostly cash, the numbers are obvious. When it is a Fort Lauderdale triplex or a waterfront lot, appraisals, carrying costs, and rental income all become contested facts that shape settlement.

If you are sorting out whether you even need to litigate, our overview of how Florida probate works and our explainer on wills and what makes them valid are useful starting points before you commit to a fight.

What a will contest costs—and whether it’s worth it

Be candid with yourself. Will contests are expensive, slow, and emotionally corrosive. Fees can run well into five figures, and in some cases the court may shift fees. Before filing, weigh three things: the strength of your evidence on a recognized ground, your standing and how much you would actually gain if you win, and whether a no-contest clause in the will puts your existing inheritance at risk. (Florida, notably, does not enforce no-contest “in terrorem” clauses—§ 732.517 makes them unenforceable—so a Florida testator cannot use one to scare you off, unlike in many other states.)

A seasoned probate attorney can usually tell you within an early consultation whether you have a colorable claim or a grievance. The difference is worth the consultation. If you want a case evaluated, contact our probate team while your deadline is still open.

The bottom line

Contesting a will in Florida is winnable—but only on real grounds, only by an interested person, and only if you act inside the statutory window. Improper execution, lack of capacity, and undue influence are the workhorses. The homestead and other real property turn an ordinary dispute into a high-stakes one. If you suspect a Florida will does not reflect the true wishes of the person who died, gather the documents, note your deadline, and talk to a probate lawyer before the three months run.

Frequently Asked Questions

How long do I have to contest a will in Florida?

If you were served with the Notice of Administration, you generally have three months from the date of service to file an objection to the will’s validity under Florida Statutes section 733.212(3). Objections filed after that period are usually barred. If you were never served, the two-year backstop in section 733.710 may apply, but you should act immediately rather than rely on it.

Can I contest a will just because it seems unfair?

No. Florida courts will not invalidate a will simply because you were left out or received less than expected. You must prove a recognized legal ground, such as improper execution, lack of testamentary capacity, undue influence, fraud, duress, mistake, or revocation. Unfairness alone is not a ground.

What is the most common ground for contesting a Florida will?

Undue influence is the most common ground, particularly in estates involving elderly testators. A rebuttable presumption arises when a substantial beneficiary who had a confidential relationship with the decedent was active in procuring the will. When that presumption applies, the burden shifts to the alleged influencer to prove the will was made freely.

Will a no-contest clause cause me to lose my inheritance if I challenge the will?

Not in Florida. Under Florida Statutes section 732.517, no-contest (in terrorem) clauses are unenforceable. A Florida will cannot strip your inheritance just because you challenged the will, which is different from the rule in many other states.

What happens to estate real property during a will contest?

A pending contest typically clouds title, which can stall any sale or refinance of the property until ownership is resolved. Homestead real estate also carries special Florida constitutional and statutory protections that may control who inherits regardless of the will. Because frozen real estate creates financial pressure, many real-property estate disputes settle at mediation.

This comes up constantly in South Florida. We have a transient, seasonal population and an enormous inventory of second homes held by people who never changed their legal residence. If that describes a parent, a spouse, or a client’s estate, here is what you actually need to know.

What ancillary probate is, and why Florida requires it

Probate is a state-court process. A court in New York has authority over the deceased person and their estate, but it has no power to retitle a deed recorded in Palm Beach County. Real property is governed by the law of the state where it is located, the lex situs rule. So even a perfectly valid, fully probated out-of-state will does not, by itself, move a Florida deed.

That is the gap ancillary administration fills. Florida opens a parallel proceeding so that a Florida court can recognize the foreign will (or the intestacy of the decedent), appoint a personal representative with authority over the Florida assets, and ultimately order or confirm the transfer of title. The governing rules live in Chapter 734 of the Florida Statutes, with the core provisions at Florida Statutes § 734.102.

What kinds of assets trigger it

Ancillary probate is almost always about real estate, but it can reach other Florida-situated property too. The usual triggers:

• A house, condo, or vacant lot titled in the decedent’s sole name (or as a tenant in common).
• A Florida bank or brokerage account that lacks a beneficiary or payable-on-death designation.
• Florida business interests, a boat titled in Florida, or a recorded mortgage held by the decedent.
• Tangible personal property physically located in Florida and owned solely by the decedent.

What does not trigger it: property that already passes outside probate. Real estate held jointly with right of survivorship, property in a living trust, a homestead that passes to a surviving spouse or descendants, and accounts with valid beneficiary designations all transfer without ancillary administration.

Who needs ancillary probate in Florida

You are likely looking at ancillary probate if all three of these are true: the person died domiciled outside Florida, they owned probate-triggering assets physically in Florida, and those assets were not already arranged to pass automatically. Domicile is the key concept. It is not where someone spends the most nights; it is the place they intend to return to and treat as home. A retiree who winters in Naples but kept a Michigan driver’s license, voted in Michigan, and filed taxes as a Michigan resident died domiciled in Michigan. Their Naples condo goes through ancillary probate here.

There is one common point of confusion worth flagging. People assume that because Florida has a homestead and the decedent “lived” in the Florida home half the year, homestead protection applies. Florida’s constitutional homestead protections apply to a Florida domiciliary’s primary residence. An out-of-state decedent’s Florida vacation home is not their homestead, so it gets none of those protections and instead becomes an ordinary probate asset, exactly the kind ancillary administration handles.

The two forms: ancillary formal vs. ancillary summary administration

Florida offers two paths, and which one applies usually drives the cost and timeline.

Ancillary formal administration

This is the full version, used when the Florida assets exceed the summary threshold or when the estate has complications (creditor disputes, contested wills, multiple parcels). A personal representative is appointed and issued ancillary letters of administration under § 734.102. That representative is often the same fiduciary already serving in the home state, who simply qualifies in Florida. Formal administration includes a creditor-notice period and typically runs several months.

Ancillary summary administration

Florida permits summary administration when the value of the entire estate subject to administration in Florida does not exceed $75,000, or when the decedent has been dead for more than two years. Summary administration is faster and cheaper because no personal representative is appointed; instead the court enters an order distributing the property directly. For a modest condo or a single small parcel held by someone who died more than two years ago, this is frequently the right tool.

How the ancillary probate process works, step by step

For a typical formal ancillary administration on a South Florida property, the sequence looks like this:

1. Open the domiciliary probate first. The home state must admit the will (or open intestate administration) and issue letters. Florida’s process leans heavily on those documents.
2. Obtain authenticated copies. You will need exemplified or authenticated copies of the foreign will, the order admitting it, and the foreign letters. Ordinary photocopies will not do.
3. File the ancillary petition in the right county. Venue is the Florida county where the property is located, Broward, Palm Beach, Miami-Dade, and so on. Florida requires a licensed Florida attorney to handle the proceeding; out-of-state lawyers cannot file it directly.
4. Admit the foreign will and qualify the personal representative. Under § 734.102, the court admits the authenticated will to record and issues ancillary letters. A nonresident representative must meet Florida’s eligibility rules (generally limited to close relatives or a spouse, or must serve through a qualified Florida co-representative).
5. Serve notice to creditors. The personal representative publishes notice and serves known creditors, opening the statutory claims window.
6. Pay claims, then transfer title. After valid claims and costs are handled, the property is deeded to the beneficiaries or sold, and clean, insurable title finally passes.

None of this is exotic, but the documentation requirements are unforgiving. A missing authentication or a domicile dispute can stall a closing for months, which is why coordination between the home-state and Florida counsel matters. Probate friction is real even in the simplest estates, as this overview of makes clear.

How much does ancillary probate cost, and how long does it take

Attorney’s fees in Florida probate are addressed by statute. Florida Statutes § 733.6171 sets out a schedule of fees presumed reasonable based on the value of the estate’s assets, and § 733.6175 governs costs and review of those fees. Ancillary attorney compensation is referenced in § 734.102 as well. In practice, summary ancillary administration on a single modest property is far cheaper than full formal administration, and many South Florida estates resolve for a flat or value-based fee plus court costs, the recording fee for the new deed, and publication charges.

Timeline ranges widely. A clean summary administration can wrap in a few weeks once the home-state documents are in hand. Formal ancillary administration, with its creditor period, generally takes a number of months. The single biggest accelerant is having the domiciliary probate completed and the authenticated copies ready before you file in Florida.

What happens if the will is contested

If someone challenges the validity of the will in the home state, that fight typically resolves there first, and the outcome flows into the Florida ancillary case. But Florida is not powerless; an interested party can raise objections in the ancillary proceeding too, and disputes over the Florida property’s distribution can arise independently. The grounds tend to mirror what you see in any will challenge, undue influence, lack of capacity, or improper execution, and they play out much the way a contest does elsewhere, as described in this explanation of . The practical lesson: resolve validity questions decisively in the domiciliary court so the Florida transfer is not built on contested ground.

How to avoid ancillary probate entirely

The good news for anyone still planning is that ancillary probate is almost always avoidable. If you or a family member owns Florida real estate while living out of state, consider these options well before they are needed:

• A revocable living trust. Deed the Florida property into a trust. On death, the successor trustee transfers or sells it with no court involvement, in Florida or anywhere else. This is the cleanest fix for second homes.
• Joint ownership with right of survivorship. For spouses especially, titling the property as tenants by the entirety or joint tenants with survivorship passes it automatically to the survivor.
• An enhanced life estate (“Lady Bird”) deed. Florida recognizes this device, which lets the owner keep full control during life while the property passes to named beneficiaries at death, outside probate.
• A coordinated estate plan. A plan drafted with the Florida property in mind, and reviewed when residency or ownership changes, prevents the surprise ancillary case in the first place.

If you are setting up or updating a plan, start with your foundational documents; our overview of wills and core estate documents is a useful first read, and you can see the broader landscape on our Florida probate page.

Working with the right counsel

Ancillary probate sits at the intersection of two states’ laws, which is exactly where things go wrong without experienced help on both ends. We regularly serve as Florida ancillary counsel for families and executors based up north, coordinating with the home-state attorney so the Florida piece moves cleanly. Morgan Legal Group handles probate in both jurisdictions, with a dedicated and a long-established New York presence for the domiciliary side of these matters.

If you have lost a loved one who owned property in South Florida, or you want to make sure your own out-of-state heirs never have to deal with this, reach out for a consultation. The earlier these issues are addressed, the less they cost in money, time, and stress.

Frequently Asked Questions

What is ancillary probate in Florida?

Ancillary probate is a secondary Florida court proceeding used to transfer Florida property, usually real estate, owned by someone who died domiciled in another state. The will is first probated in the home state, then a parallel ancillary administration is opened in the Florida county where the property is located so a Florida court can clear and transfer title under Chapter 734 of the Florida Statutes.

Do I need ancillary probate if my parent lived out of state but owned a Florida condo?

Usually yes, if the condo was titled in their sole name and was not held in a trust, owned jointly with right of survivorship, or covered by a transfer-on-death style arrangement. Because the decedent was domiciled outside Florida, the Florida property cannot be retitled by the home-state probate alone, so an ancillary proceeding is required to pass clean title to the heirs or a buyer.

How long does ancillary probate take in Florida?

It depends on the form. Ancillary summary administration, available when the Florida estate is $75,000 or less or the person died more than two years ago, can finish in a few weeks once the home-state documents are ready. Formal ancillary administration, which includes a creditor-notice period, generally takes several months. Having the authenticated foreign will and letters in hand before filing is the biggest time-saver.

How much does ancillary probate cost?

Florida attorney’s fees for probate are guided by statute, Florida Statutes section 733.6171, which presumes reasonable fees based on the value of the estate’s assets, plus court costs, the deed recording fee, and publication charges. Summary administration on a single modest property is significantly cheaper than full formal administration. Many South Florida ancillary matters are handled on a flat or value-based fee.

Can I avoid ancillary probate on my Florida property?

Yes, in almost every case. Placing the property in a revocable living trust, holding it jointly with right of survivorship, or using a Florida enhanced life estate (Lady Bird) deed all allow it to pass at death without an ancillary court proceeding. The key is to arrange this in advance, ideally as part of a coordinated estate plan that accounts for the out-of-state Florida property.

In our South Florida practice, most estates are anchored by real property — the homestead in Boca, the condo in Aventura, the rental duplex in Fort Lauderdale. But the accounts that fund those properties, pay the carrying costs, and hold the family’s liquid wealth are where probate quietly gets complicated. Below is how an experienced Florida probate lawyer thinks through the money side of an estate.

Which Financial Accounts Actually Go Through Probate in Florida

The single most important question is not how much money sits in an account. It is how the account is titled and whether it names a beneficiary. Title controls.

Accounts that typically avoid probate include:

• Joint accounts with rights of survivorship. A bank account held jointly with a spouse usually passes to the survivor automatically, outside probate.
• Payable-on-death (POD) and transfer-on-death (TOD) accounts. Florida banks and brokerages routinely offer POD/TOD registrations. A valid beneficiary designation moves the asset directly to the named person.
• Retirement accounts with living beneficiaries. IRAs, 401(k)s, and annuities pass by contract to the designated beneficiary, not through the will.
• Life insurance proceeds paid to a named beneficiary other than the estate.

Accounts that usually do go through probate include any individual account in the decedent’s sole name with no surviving beneficiary, a beneficiary who predeceased the owner with no contingent named, or an account that names “the estate” as beneficiary. We also see accounts pulled into probate when a beneficiary form was never updated after a divorce, a death, or a remarriage. That is one of the most common and most painful mistakes families discover too late.

The Role of the Personal Representative

Once a Florida court issues Letters of Administration under Chapter 733 of the Florida Statutes, the personal representative holds the legal authority to deal with financial institutions. Until those Letters issue, no bank in Florida is going to release funds or even discuss account details, no matter how many family members show up. This is why getting the case opened promptly matters — bills, insurance, and property taxes on the homestead do not pause while everyone grieves.

Formal Administration vs. Summary Administration for Account-Heavy Estates

Florida offers two main probate tracks, and the choice often turns on the value of the probate assets.

1. Summary administration. Available under section 735.201 when the value of the probate estate (less exempt property) is $75,000 or less, or when the decedent has been dead for more than two years. It is faster and cheaper, but no personal representative is appointed, which can make dealing with banks awkward.
2. Formal administration. The standard process for larger estates and the route most account-heavy and real-property estates take. A personal representative is appointed, receives Letters, and is empowered to marshal, manage, and liquidate accounts.

For our typical South Florida client, an estate with a homestead plus a few six-figure brokerage and bank accounts will almost always require formal administration. The brokerage firms in particular — think the large national custodians — will not transfer securities without Letters and, frequently, their own internal transfer paperwork and a certified death certificate. Plan for friction.

Digital Assets: What Florida’s RUFADAA Does and Doesn’t Allow

Florida adopted its version of the Revised Uniform Fiduciary Access to Digital Assets Act in Chapter 740 of the Florida Statutes. This statute is the backbone of how a personal representative gains access to a decedent’s digital life. It draws a critical line that surprises most families: there is a difference between the content of electronic communications and the catalogue of them.

Under the Act, a fiduciary can more easily obtain a catalogue of electronic communications — the record that an email was sent, to whom, and when — than the actual content of those messages. Content of emails and private messages enjoys stronger protection, rooted in federal privacy law, and generally requires either the decedent’s express consent or a court order.

The Act also establishes a priority order for instructions, which every Floridian should understand:

• Online tools come first. If a platform offers a built-in legacy or inactive-account tool — Google’s Inactive Account Manager or Apple’s Legacy Contact, for example — the decedent’s choices in that tool override the will.
• The estate plan comes second. If no online tool was used, directions in a will, trust, or power of attorney control.
• The provider’s terms of service come last. Only if nothing above applies does the click-wrap agreement govern.

The practical takeaway: a beautifully drafted will can be silently overridden by a forgotten setting in a Google account. We urge clients to align their estate documents with their online tool settings so the two do not contradict each other.

Cryptocurrency and Self-Custodied Assets

Cryptocurrency is the area where Florida probate most often breaks down — not because of the law, but because of physics. If a decedent held Bitcoin or other tokens in a self-custodied wallet and the private keys or seed phrase die with them, the asset is effectively lost. There is no bank to subpoena, no custodian to compel. We have seen real wealth evaporate this way.

For estate purposes, crypto is treated as intangible personal property that belongs in the probate estate if it was held in the decedent’s individual name without survivorship features. A personal representative must locate the holdings, value them as of the date of death, and report them. Crypto held on a custodial exchange is far more recoverable, because the exchange can be approached with Letters and a death certificate. The lesson for South Florida clients with meaningful crypto holdings is blunt: document the existence and access method securely, and tell your estate planning attorney it exists.

Valuing and Securing Accounts: A Personal Representative’s Checklist

Once appointed, the personal representative has a fiduciary duty to find and protect every account. In account-heavy estates, that work is methodical:

• Order multiple certified death certificates — each institution will want its own.
• Review the last two years of mail and email for statements, 1099s, and account confirmations.
• Check the decedent’s tax returns for interest, dividends, and capital gains that reveal hidden accounts.
• Notify each financial institution promptly and freeze unauthorized access.
• Obtain date-of-death valuations for brokerage and investment accounts, which also matters for the heirs’ stepped-up cost basis.
• Search Florida’s unclaimed property database, which holds dormant accounts the decedent may have forgotten.
• Inventory digital accounts and apply the RUFADAA access order before contacting providers.

This inventory becomes part of the formal estate accounting the personal representative files with the court. Sloppy work here is a frequent source of disputes among beneficiaries — and disputes are expensive. When heirs suspect that accounts were missed, hidden, or mishandled, the matter can escalate into litigation, the same way contested estates do in other jurisdictions. Our colleagues at Morgan Legal handle exactly these fights; their overview of illustrates how quickly an accounting dispute can turn adversarial.

How Florida Compares, and Why Account Titling Is Universal Wisdom

The mechanics of which assets avoid probate are remarkably consistent across states, even though the procedures differ. The same beneficiary-designation logic that keeps a Florida brokerage account out of probate applies in New York and elsewhere. For families with assets or relatives in multiple states, it helps to see how another jurisdiction frames the question; Morgan Legal’s discussion of is a useful comparison that reinforces a Florida truth: the way you title an account today determines whether your family stands in a courtroom tomorrow.

For Floridians who own property in more than one state, ancillary probate becomes a real concern. Out-of-state real estate generally requires a separate probate proceeding where the property sits, while financial accounts are typically administered in the decedent’s state of domicile. South Florida estates often touch this issue because of seasonal residents and snowbirds who never fully changed their financial home base.

Reducing What Has to Go Through Probate

The best probate is the one your family never has to file. Tools that keep financial and digital assets out of court include:

• A funded revocable living trust holding brokerage and bank accounts.
• Properly completed POD/TOD designations reviewed every few years.
• Coordinated retirement-account beneficiaries with named contingents.
• Online legacy tools configured to match the written plan.
• A secure, attorney-known record of crypto access for self-custodied holdings.

If you are administering an estate now, or planning to keep your own out of the courts, our firm guides South Florida families through both. You can learn more about our Florida probate services or contact our office to discuss your situation. For estates with Florida real property and a parallel financial footprint, our partners at offer additional regional depth.

Money and data are the two things that don’t fit neatly in a deed. Handle them deliberately, and the rest of the estate — even a real-property-heavy one — tends to follow.

Frequently Asked Questions

Do all bank and brokerage accounts in Florida have to go through probate?

No. Accounts held jointly with rights of survivorship, or those with a valid payable-on-death (POD) or transfer-on-death (TOD) beneficiary, pass directly to the survivor or named beneficiary and avoid probate. Only accounts in the decedent’s sole name with no living beneficiary typically become probate assets administered under Chapter 733 of the Florida Statutes.

How does a Florida personal representative access a deceased person's online and digital accounts?

Access is governed by Florida’s Fiduciary Access to Digital Assets Act in Chapter 740. The law applies a priority order: a platform’s online legacy tool (like Google Inactive Account Manager or Apple Legacy Contact) controls first, then directions in the will or trust, then the provider’s terms of service. The content of emails and private messages is harder to obtain and often requires the decedent’s consent or a court order.

What happens to cryptocurrency in a Florida probate?

Cryptocurrency held in the decedent’s sole name is treated as intangible personal property and belongs in the probate estate. The personal representative must locate it and value it as of the date of death. The practical problem is access: if private keys or a seed phrase are lost, self-custodied crypto can be unrecoverable. Crypto on a custodial exchange is easier to reach because the exchange can act on Letters of Administration and a death certificate.

When can an estate use summary administration instead of formal probate in Florida?

Under section 735.201, summary administration is available when the value of the probate estate (excluding exempt property) is $75,000 or less, or when the person has been deceased for more than two years. Larger or more complex estates, especially those with significant brokerage accounts and real property, generally require formal administration with an appointed personal representative.

Can a beneficiary designation override what my Florida will says about an account?

Yes. A valid POD, TOD, or retirement-account beneficiary designation is a contract that passes the asset directly and overrides the will for that account. This is why outdated designations after a divorce, death, or remarriage cause so many problems. Review your designations periodically and coordinate them with your overall estate plan.