In Florida, an asset goes through probate when it was owned by the deceased person alone, in their own name, with no surviving co-owner and no built-in beneficiary or transfer instruction. Everything else — jointly held property, accounts with named beneficiaries, and assets sitting in a living trust — generally passes outside of probate. So the practical question is never “does my loved one’s estate need probate?” but rather “which specific assets do, and which ones don’t?”
That distinction matters enormously in South Florida, where so many estates are anchored by a house, a condo, or an investment property. Real estate is one of the assets most likely to land in probate, and it is also the one where small title details — a deed signed twenty years ago, a missing spouse’s name, a homestead question — change everything. This guide walks through what gets pulled into a Florida probate and what slips past it.
The basic rule: probate assets vs. non-probate assets
Florida probate exists to do one thing: transfer legal title of a decedent’s assets to the people entitled to receive them. The court only needs to get involved when no other mechanism already controls who gets the asset. When ownership transfers automatically — by survivorship, by beneficiary designation, or by trust — the probate court has nothing to decide.
So before assuming a full probate is required, every asset should be sorted into one of two buckets. The sorting is asset-by-asset, not estate-wide. It is entirely normal for one person to die owning a probate house, a non-probate IRA, and a jointly titled bank account — three assets, three different paths.
Assets that typically MUST go through probate
These are the assets held in the decedent’s sole name with no survivorship feature and no beneficiary attached:
- Real property titled solely in the decedent’s name — a home, condo, or vacant lot the decedent owned alone, or owned as a tenant in common with someone else. A tenant-in-common share does not pass to the co-owner automatically; it passes through the deceased owner’s estate.
- Individual bank and brokerage accounts with no payable-on-death (POD) or transfer-on-death (TOD) designation.
- Vehicles, boats, and other titled personal property held only in the decedent’s name (though Florida offers some streamlined transfer options for a single vehicle).
- Business interests — a solely owned LLC membership interest or shares with no transfer mechanism in the operating agreement or shareholder agreement.
- Tangible personal property of real value: jewelry, art, collectibles, furnishings.
- Money owed to the decedent, including a personal injury or wrongful-death claim, certain unpaid wages, or a tax refund.
There is also a catch-all that surprises families: any asset that was supposed to pass outside probate but failed to. A POD account whose named beneficiary died first, a trust that was created but never funded, a life insurance policy with no valid beneficiary — these default back into the probate estate.
Assets that typically SKIP probate in Florida
The following ordinarily transfer outside of probate, provided the paperwork is clean and a living beneficiary or co-owner exists:
- Property held as joint tenants with right of survivorship or, between spouses, as tenancy by the entirety. On the first death, the survivor owns the whole thing automatically.
- Florida homestead that passes to a surviving spouse or heirs. Homestead has its own special rules and frequently descends outside the probate estate — but it almost always still requires a court order or proceeding to confirm the homestead status and clear title.
- Life insurance and annuities paid to a named, living beneficiary other than the estate.
- Retirement accounts — IRAs, 401(k)s, 403(b)s — with a valid beneficiary designation.
- POD bank accounts and TOD brokerage accounts.
- Assets titled in the name of a revocable living trust that was properly funded during the decedent’s lifetime.
- Florida “lady bird” (enhanced life estate) deeds and TOD deed arrangements, where the remainder interest passes automatically on death.
Why Florida real estate so often ends up in probate
For the property-heavy estates we see across Miami-Dade, Broward, and Palm Beach counties, the deciding factor is almost always how the deed reads. Two houses on the same street can take completely different paths depending on a single word in the granting clause.
If the deed says the owners hold title “as joint tenants with right of survivorship” or, for a married couple, “as tenants by the entirety,” the surviving owner takes full title without probate — usually with nothing more than a death certificate and an affidavit recorded in the public records. But if the deed simply names two people, Florida law presumes a tenancy in common. There is no survivorship, and the decedent’s fractional share has to be administered. Many older deeds, and many between unmarried co-owners, fall into exactly this trap.
Solely owned property — the snowbird’s condo bought in one name, the rental house inherited years ago — almost always requires probate to convey clear, insurable title to the next owner. A title company will not insure a sale or refinance until the chain of title is properly cleared, and for a sole-owner death that means a probate order. The complications multiply when there are out-of-state heirs, a property that needs to be sold quickly, or disagreement among beneficiaries; these are some of the in any state.
Homestead is its own category
Florida’s constitutional homestead protection complicates the probate question for a primary residence. Homestead that descends to a surviving spouse or to heirs is, in many cases, not a probate asset and is not reachable by the decedent’s general creditors. But “not a probate asset” does not mean “no court involvement.” To make the title marketable, the personal representative or heirs typically file a petition to determine homestead status, and the court enters an order confirming that the property passed as protected homestead. Skipping that step leaves a cloud on title that resurfaces the moment anyone tries to sell.
Homestead also carries devise restrictions. If the decedent was survived by a spouse or minor child, Florida law limits how the home can be left in a will. A devise that violates those limits is overridden by statute, and the property passes to the protected family members instead. This is one of the most common places where what the will says and what the law does diverge.
Florida’s two main probate paths — and the size threshold
Not every probate is a full-blown administration. Florida law (Chapter 733 of the Florida Statutes) provides two principal forms:
- Formal administration — the standard process, used for most estates with real property or with assets exceeding the summary threshold. A personal representative is appointed, creditors are noticed, and the court oversees the distribution.
- Summary administration — available under Florida Statutes § 735.201 when the value of the probate estate (excluding exempt property like protected homestead) does not exceed $75,000, or when the decedent has been dead for more than two years. It is faster and skips the appointment of a personal representative.
There is also disposition without administration for very small estates where the only assets are exempt property and the costs of final illness and funeral — essentially a way to reimburse whoever paid those bills without a formal case. And for a single motor vehicle or modest accounts, certain transfers can sometimes happen with affidavits rather than a court proceeding.
The two-year mark is worth flagging. Under § 733.710, claims of creditors against the estate are generally barred two years after death. That is why estates left untouched for years often qualify for the simpler summary path — the creditor window has closed. It is also why a long-dormant property title can still be cleared without the full creditor process.
A quick way to audit an estate yourself
Before you call anyone, you can do a rough triage. For each asset, ask three questions in order:
- Is there a surviving co-owner with survivorship rights? If yes (joint tenants WROS or tenancy by the entirety), it skips probate.
- Is there a living named beneficiary, POD/TOD designation, or trust holding title? If yes, it skips probate.
- Was it owned by the decedent alone, in their own name, with no beneficiary? If yes, it is a probate asset.
Run every account, deed, and title through that filter and you will quickly see whether you are looking at a clean trust-and-beneficiary estate, a small estate that may qualify for summary administration, or a formal probate driven by real property. If you would like a deeper walk-through of how estate administration and probate fit together, this overview of covers the mechanics well, and our own Florida probate page addresses the local procedure in more detail.
Planning ahead: how to keep assets out of probate
If you are reading this for your own planning rather than to settle an estate, the takeaways are practical. The most reliable ways to keep Florida assets — especially real property — out of probate are to fund a revocable living trust, to use a properly drafted lady bird deed for the homestead, to confirm survivorship language on jointly held deeds, and to keep beneficiary designations current on every account that allows one. A will, by contrast, does not avoid probate; it simply tells the probate court how to distribute the assets that pass through it. If you want to understand how a will fits into the picture, see our discussion of wills and how they work in Florida.
For families with property on both coasts or in multiple states, coordinating the plan matters even more, because real estate is probated where it sits. An out-of-state property can trigger a second, “ancillary” probate. Morgan Legal’s regularly handles these multi-property and ancillary situations, and reviewing titles before a death is far cheaper than untangling them after.
The bottom line for South Florida estates: the house usually decides whether you are headed to probate. Get the deed and the homestead status right, and a great deal of the rest tends to fall into place. If you are unsure how an estate’s assets sort out, reach out for a review before assuming the worst — many estates are simpler, and a few are more involved, than the family first believes.
Frequently Asked Questions
Does every estate in Florida have to go through probate?
No. Probate is only required for assets the decedent owned in their sole name with no surviving co-owner and no beneficiary designation. Assets held jointly with survivorship rights, accounts with POD/TOD or beneficiary designations, and property titled in a funded living trust all pass outside of probate.
Does a Florida house automatically go through probate?
It depends entirely on the deed. Property held as joint tenants with right of survivorship or, between spouses, as tenancy by the entirety, passes to the survivor without probate. Property owned solely by the decedent, or held as tenants in common, generally must be probated to clear title. Homestead has special rules and often still requires a court order to confirm its status.
What is the small-estate threshold for summary administration in Florida?
Under Florida Statutes section 735.201, summary administration is available when the value of the probate estate (excluding exempt property such as protected homestead) does not exceed $75,000, or when the decedent has been dead for more than two years. It is faster than formal administration and does not require appointing a personal representative.
Do retirement accounts and life insurance go through probate in Florida?
Generally no, as long as there is a valid, living beneficiary other than the estate. IRAs, 401(k)s, and life insurance and annuity proceeds pass directly to the named beneficiary outside of probate. They only fall into the probate estate if no valid beneficiary survives or the estate itself is named as beneficiary.
Does having a will avoid probate?
No. A will does not avoid probate. It is the instruction sheet the probate court follows to distribute the assets that pass through probate. To keep assets out of probate, Florida residents commonly use revocable living trusts, lady bird (enhanced life estate) deeds, survivorship deeds, and current beneficiary designations.
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