In Florida, having a will does not automatically mean the estate goes through probate, but the will itself must always be filed with the court. Whether you have to probate a will in Florida depends on what the deceased person owned in their name alone. Anyone holding the original will has 10 days from learning of the death to deposit it with the clerk of the circuit court in the county where the deceased lived.1Florida Senate. Florida Code 732 – Production of Wills Probate itself is a separate step, and it is only necessary if the deceased left assets that cannot transfer any other way.
Filing the Will Is Not the Same as Opening Probate
Two obligations often get confused. Filing the original will is a mandatory act of custody. Opening a probate case is a separate legal proceeding that may or may not be necessary depending on the assets involved.
The custodian of the will must deposit it with the clerk within 10 days of learning of the death and provide the date of death or the last four digits of the deceased person’s Social Security number. The clerk preserves the original for at least 20 years whether or not anyone opens probate.1Florida Senate. Florida Code 732 – Production of Wills
Holding onto the will has consequences. A custodian who fails to file without a reasonable excuse can be ordered to produce it and held liable for costs, damages, and the petitioner’s attorney fees.1Florida Senate. Florida Code 732 – Production of Wills
If the original will is locked in the deceased person’s safe deposit box, that creates a practical problem, because banks freeze access when the owner dies. A Florida judge can authorize limited access to search for a will or burial instructions, but you have to ask for it formally and provide documentation such as a death certificate.
When Probate Is Actually Required
Probate is required whenever the deceased owned “probate assets,” meaning property titled in their name alone with no built-in transfer mechanism. Without a court order, no one has legal authority to sell, access, or distribute these assets.2Florida Courts. Probate
Typical examples:
- A bank account in the deceased person’s name only, with no payable-on-death beneficiary
- Real estate titled solely to the deceased person, with no co-owner or lady bird deed
- A vehicle registered solely to the deceased person
- A tenancy-in-common interest in property, because that form of co-ownership has no automatic survivorship
Probate serves three functions for these assets: it appoints a personal representative with legal authority to act, it channels creditor claims into a defined window, and it produces court orders that transfer clean title to the beneficiaries.2Florida Courts. Probate
Assets That Skip Probate Entirely
Many assets are structured to transfer automatically at death and never enter probate no matter what the will says. If everything the deceased owned falls into one of these categories, opening probate may not be necessary at all, even though the will still has to be filed.
Revocable Living Trusts
Assets retitled into a revocable living trust during life are held by the trust itself. When the trust creator dies, the successor trustee distributes the assets under the trust’s terms with no court involvement. The catch is that the trust only works for assets actually transferred into it. A trust drafted and signed but never funded accomplishes nothing.
Joint Ownership With Survivorship
Property held as joint tenants with rights of survivorship passes to the surviving owner automatically. That applies to real estate, bank accounts, and brokerage accounts. For married couples, Florida also recognizes tenancy by the entireties, under which each spouse is treated as owning the whole property, the survivor continues as sole owner, and creditors of just one spouse cannot reach the property.
Beneficiary Designations
Life insurance, IRAs, 401(k)s, and accounts marked payable-on-death or transfer-on-death go straight to the named beneficiary. The will has no effect on these. If a will and a beneficiary designation disagree, the designation controls. That makes keeping beneficiary forms current after divorce, remarriage, or a death in the family one of the most important things you can do outside of drafting the will itself.
Lady Bird Deeds
Florida recognizes enhanced life estate deeds, commonly called lady bird deeds. The owner keeps full control during life, including the right to sell, mortgage, or gift the property, and the named beneficiary takes ownership automatically at death. Florida does not recognize transfer-on-death deeds for real estate, so a lady bird deed is the main way to pass real property outside probate without using a trust.
The Homestead Rule That Overrides the Will
Florida places sharp limits on how a homestead can pass at death. If the deceased is survived by a spouse and one or more descendants, the homestead cannot be freely devised by will. The surviving spouse receives either a life estate with the remainder going to the descendants, or the spouse can elect an undivided one-half interest as tenant in common with the descendants taking the other half. The election must be made within six months of the death and is irrevocable once made.3Online Sunshine. Florida Code 732 – Descent of Homestead
These rules override the will. A will that leaves the homestead entirely to one child cannot cut out a surviving spouse. Blended families in particular get caught by this, because the deceased often intended the home to go to children from a prior marriage.
These restrictions do not apply if the homestead was already held as tenancy by the entireties or as a joint tenancy with rights of survivorship. In that case, the property passes to the surviving co-owner outside the will and outside probate.3Online Sunshine. Florida Code 732 – Descent of Homestead
Which Probate Track Applies
If probate is needed, Florida offers three paths. Which one applies depends on the size and makeup of the estate.
Formal Administration
This is the full court-supervised process and typically takes 9 to 12 months. A petition opens the case, the court appoints a personal representative and issues letters of administration, and the representative inventories the assets. Notice to creditors must be published in a local newspaper once a week for two consecutive weeks, and known creditors get direct notice. Creditors then have three months from first publication, or 30 days from direct service, whichever is later, to file claims. Claims filed after those deadlines are barred.4Online Sunshine. Florida Code 733 – Limitations on Claims Against Estates After debts, taxes, and expenses are paid, the representative distributes what is left, files an accounting, and petitions for discharge to close the estate.
Formal administration also requires the personal representative to hire an attorney, except in the narrow case where the representative is the only interested person in the estate.
Summary Administration
Summary administration is available in two situations: when the probate assets (minus creditor-exempt property) are worth $75,000 or less, or when the deceased has been dead for more than two years. If the will specifically directs formal administration under Chapter 733, summary administration is off the table.5Online Sunshine. Florida Code 735 – Summary Administration; Nature of Proceedings
No personal representative is appointed. The petitioner asks the court to enter an order distributing assets directly to the beneficiaries, which can cut months and significant cost off the process.
Disposition Without Administration
The smallest estates can skip administration entirely. This is available when the deceased left only exempt personal property, and any non-exempt personal property is worth no more than the cost of preferred funeral expenses plus reasonable medical and hospital bills from the last 60 days of the final illness.6Justia Law. Florida Code 735 – Disposition Without Administration The request can be made informally, often by affidavit or letter, and the court authorizes transfer of the property to the people entitled to receive it.
What Probate Costs
Court filing fees are set by statute:7Online Sunshine. Florida Code 28 – Service Charges and Filing Fees in Probate Matters
- Formal administration: $399
- Summary administration for estates of $1,000 or more: $344
- Summary administration for estates under $1,000: $230
- Disposition without administration: $230
Attorney fees are the larger cost in formal administration. Florida sets a schedule of fees presumed reasonable, based on the value of the estate: $1,500 for estates of $40,000 or less, $2,250 up to $70,000, $3,000 up to $100,000, and $3,000 plus 3% of the value above $100,000 for estates up to $1 million. Larger estates step down through progressively smaller percentages.8Online Sunshine. Florida Code 733 – Compensation of Attorney for the Personal Representative For a $500,000 estate, the presumed reasonable attorney fee works out to $15,000. Extraordinary services such as contested litigation can support additional fees, and the personal representative is entitled to separate compensation on a similar basis.
Florida has no state estate or inheritance tax. Federal estate tax applies only to estates exceeding the federal exclusion, which is $15,000,000 per individual for 2026.9Internal Revenue Service. What’s New – Estate and Gift Tax
What Happens If You Do Nothing
Ignoring probate when it’s required doesn’t solve the problem. It calcifies it. Legal title to probate assets stays in the deceased person’s name indefinitely. A house titled solely to them cannot be sold or refinanced because no buyer or lender will accept a deed from someone who isn’t the record owner. Bank accounts stay frozen.
Families often discover this years later, when a child tries to sell the family home and learns the title cannot be conveyed because probate was never opened. Fixing it then is usually more expensive than the original probate would have been, sometimes requiring a quiet title action in addition to a delayed estate proceeding.
Creditors also remain in the picture. One practical benefit of probate is the three-month claims window, which is a protection for beneficiaries as much as it is a process for creditors.4Online Sunshine. Florida Code 733 – Limitations on Claims Against Estates Without probate, potential claims can linger indefinitely.
Beneficiaries or creditors harmed by the delay can petition the court to compel the custodian to file the will and to force an estate proceeding open. The person responsible for the delay can be made to pay the legal costs.1Florida Senate. Florida Code 732 – Production of Wills