Not all estates have to go through probate in Florida. Probate only reaches assets the deceased person owned in their sole name with no co-owner or beneficiary designation attached. Property held in a trust, accounts with a named beneficiary, and jointly owned property with survivorship rights all transfer automatically at death. And when probate is required, Florida offers streamlined procedures that can wrap up small estates in weeks.
Whether an estate needs probate has nothing to do with whether the person left a will. The question is what they owned and how it was titled.
What Actually Triggers Probate
Florida law calls the assets that require court administration “probate assets.” These are things owned in the deceased person’s sole name at death, or co-owned in a way that doesn’t include automatic succession rights.1The Florida Bar. Consumer Pamphlet: Probate in Florida A bank account titled only to the deceased person, real estate with only their name on the deed, a vehicle in their name alone — all probate assets.
If a person dies owning nothing in their sole name because everything was jointly held, held in a trust, or had a beneficiary designation, there may be no probate assets at all. No probate administration is needed in that case.
Assets That Pass Outside Probate
Most probate avoidance in Florida comes down to how property is titled and whether beneficiaries have been named. Several mechanisms move assets to heirs without any court involvement.
Living Trusts
A revocable living trust holds property during your lifetime and directs where it goes after death. The trustee named in the trust document distributes assets to the beneficiaries privately, usually much faster than probate.
A common failure trips families up here. A trust only controls assets that have been formally transferred into it. Create the trust but never retitle your bank accounts, brokerage accounts, or real estate into the trust’s name, and those assets remain in your individual name at death. They go straight into probate. A pour-over will can redirect forgotten assets into the trust, but it still requires a probate proceeding to accomplish that transfer. Funding the trust is the whole point.
Joint Ownership With Survivorship Rights
Florida treats joint ownership differently than many states. The common-law right of survivorship does not automatically apply. If two people own property together without specifying survivorship rights in the deed or account agreement, Florida law creates a tenancy in common. Each person’s share becomes part of their own estate at death and heads to probate.2The Florida Legislature. Florida Statutes 689.15 – Estates by Survivorship
To avoid probate, the ownership document has to expressly state “joint tenants with right of survivorship.” When it does, the surviving owner takes full ownership automatically at death, typically by presenting a death certificate to the bank or filing an affidavit to update a real estate title.
Married couples have an additional option: tenancy by the entirety. This is a form of joint ownership available only to spouses and includes built-in survivorship rights. When one spouse dies, the surviving spouse automatically owns the entire property by operation of law.2The Florida Legislature. Florida Statutes 689.15 – Estates by Survivorship In Florida, jointly held property between spouses is presumed to be tenancy by the entirety, making it the most common form of marital property ownership in the state.
Beneficiary Designations
Bank accounts with a payable-on-death (POD) designation and investment accounts registered as transfer-on-death (TOD) pass directly to the named beneficiary. Life insurance policies and retirement accounts like 401(k)s and IRAs work the same way through their own beneficiary designations. None of it touches probate.
One scenario where this backfires: naming a minor child as a direct beneficiary. A child under 18 has no legal capacity to take ownership of inherited assets like an IRA. A court proceeding is typically required to appoint a guardian of the child’s property before the funds can be managed on the child’s behalf. Naming a custodian under the Uniform Transfers to Minors Act, or naming a trust for the child’s benefit, avoids this.
Homestead Property
Florida’s constitution protects a primary residence from the deceased person’s creditors and provides for its transfer to a surviving spouse or minor children.3The Florida Legislature. Florida Statutes 732.401 – Descent of Homestead Homestead passes to qualifying heirs regardless of what the will says, and estate creditors cannot force its sale to pay debts.
Homestead doesn’t completely sidestep the court, though. A petition to determine homestead status is usually filed with the probate court to formally establish the property’s protected status and clear the title for the surviving family members. It’s a more limited proceeding than full probate administration, but the court is still involved.
Simplified Probate Options for Small Estates
When an estate does contain probate assets, Florida doesn’t always require a full-blown court proceeding. Two streamlined alternatives exist for qualifying estates.
Disposition of Personal Property Without Administration
This is the simplest option, reserved for very small estates. It’s available when the deceased person’s only probate assets are personal property that is either exempt from creditor claims or whose nonexempt value doesn’t exceed the cost of preferred funeral expenses and reasonable medical bills from the last 60 days of the final illness.4Florida Senate. Florida Code Title XLII Chapter 735 Part II – Section 735.301 If the deceased person owned any real estate in their sole name, this option is off the table.
Summary Administration
Summary administration is the more commonly used shortcut. An estate qualifies if the total value of probate assets, after subtracting property exempt from creditors (like homestead), is $75,000 or less. It’s also available regardless of estate value when the person has been dead for more than two years.5Florida Senate. Florida Statutes 735.201 – Summary Administration Nature of Proceedings
Summary administration skips the appointment of a personal representative entirely. The court issues an order distributing assets directly to the beneficiaries, which can happen in a matter of weeks.
When Formal Administration Is Required
Estates that don’t qualify for simplified procedures go through formal administration, the full probate process with court supervision at every stage. This typically runs six to nine months from start to finish. The court appoints a personal representative (the term Florida uses instead of “executor”) to identify and gather assets, pay valid debts and taxes, and distribute what remains to beneficiaries.1The Florida Bar. Consumer Pamphlet: Probate in Florida
Formal administration is also the most expensive path. Florida sets statutory presumed-reasonable compensation for personal representatives, starting at 3% of the estate’s compensable value for the first $1 million.6The Florida Legislature. Florida Statutes 733.617 – Compensation of Personal Representative Attorney fees follow a separate statutory schedule under Section 733.6171. On a $500,000 estate, statutory PR compensation and attorney fees together can easily reach $30,000 before court filing fees, publication costs, and accounting expenses. This is a major reason families invest in probate-avoidance strategies like trusts and beneficiary designations.
Florida Requires an Attorney for Probate
This catches many people off guard. Florida Probate Rule 5.030 requires every personal representative to be represented by an attorney admitted to practice in Florida. The only exception is when the personal representative is the sole interested person in the estate, meaning there are no other beneficiaries, no creditors, and no one else with a legal stake. In practice, that exception is extremely narrow. For nearly every Florida probate case, hiring a probate attorney is not optional.
The requirement applies even when the estate is small and straightforward. Attorney fees come out of the estate, not the personal representative’s pocket, but they are a cost families need to anticipate. Summary administration still benefits from an attorney’s involvement, though fees are significantly lower given the simpler process.
Dying Without a Will Doesn’t Skip Probate
A common misconception is that dying without a will means the estate avoids probate. It doesn’t. Florida’s intestacy laws simply take over and determine who inherits the probate assets instead of the deceased person’s own instructions. The estate still goes through either summary or formal administration depending on its size and complexity.
Florida’s intestacy rules for a surviving spouse work as follows:
- No surviving descendants: the spouse inherits the entire estate.
- Descendants who are all also descendants of the surviving spouse, and the spouse has no other children: the spouse inherits the entire estate.
- Descendants who are not descendants of the surviving spouse (children from a prior relationship): the spouse inherits half, and the descendants split the other half.
- All descendants are shared, but the surviving spouse has children from another relationship: the spouse inherits half, and the shared descendants split the other half.
These rules apply only to probate assets.7The Florida Legislature. Florida Statutes 732.102 – Spouses Share of Intestate Estate Non-probate assets like jointly held property and accounts with beneficiary designations still pass according to their own terms, whether or not a will exists.