When someone dies in Florida without a will, the Florida probate process without a will follows a fixed statutory script: Chapter 732 decides who inherits, and the estate moves through one of three court-supervised procedures depending on its size. A judge appoints a personal representative (usually the surviving spouse or the closest heir), that person pays valid debts, and whatever remains is distributed in the order the statute sets. No verbal promise or informal note from the deceased changes the outcome.
Who Inherits When There’s No Will in Florida
Florida Statutes Section 732.102 sets a clear priority.1Florida Legislature. Florida Code Chapter 732 – Probate Code: Intestate Succession and Wills A surviving spouse takes the entire intestate estate in two situations: the deceased left no descendants at all, or every one of the deceased’s descendants is also a descendant of the surviving spouse and the surviving spouse has no other children.
The estate splits 50/50 between the spouse and the descendants in two other situations: the deceased left descendants who are not also children of the surviving spouse, or the surviving spouse has children from another relationship.
With no surviving spouse, the whole estate passes to the descendants. If there are none, it goes to the parents equally, or to the surviving parent. From there the law works outward to siblings and their descendants, then to grandparents, aunts, uncles, and cousins, dividing the estate between the paternal and maternal sides.2Florida Legislature. Florida Code 732.103 – Share of Other Heirs
The court applies this hierarchy mechanically against the family tree. A judge has no discretion to depart from it.
How the Homestead and Family Protections Change the Split
Florida’s homestead rules override the general succession scheme for the family home, and this is where surviving spouses are most often caught off guard. If the deceased is survived by both a spouse and descendants, the spouse does not inherit the homestead outright. The spouse receives a life estate, and the descendants hold the remainder. Within six months of the death, the spouse may instead elect to take an undivided one-half interest as a tenant in common with the descendants. Once made, that election cannot be undone.3Florida Legislature. Florida Code 732.401 – Descent of Homestead
If the home was owned as tenancy by the entireties or joint tenancy with rights of survivorship, these homestead descent rules do not apply. Title passes directly to the surviving co-owner outside of probate.
Two other protections stand alongside the homestead rule. Certain personal property is exempt from creditor claims and belongs to the surviving spouse or heirs: household furniture and appliances up to $20,000 in net value, up to two personal vehicles each under 15,000 pounds gross weight, and any 529 college savings accounts.4Florida Legislature. Florida Code 732.402 – Exempt Property The surviving spouse and any dependents the deceased was supporting can also request a family allowance of up to $18,000 to cover living expenses during probate.5Florida Legislature. Florida Code 732.403 – Family Allowance
Assets That Pass Outside Probate
Not everything the deceased owned goes through probate, and identifying what doesn’t matters, because a smaller probate estate may qualify for a faster path. The following typically transfer without any court involvement:
- Bank accounts with a payable-on-death designation, collected by the named beneficiary with a death certificate.
- Life insurance proceeds paid to a named beneficiary.
- IRAs, 401(k)s, and other retirement accounts with a designated beneficiary.
- Real property held as joint tenancy with rights of survivorship or tenancy by the entireties.
- Transfer-on-death brokerage accounts.
Which Probate Path the Estate Will Follow
Florida offers three procedures.
Disposition Without Administration
The simplest option applies only when the estate contains nothing but exempt personal property, and any nonexempt personal property is worth no more than the funeral expenses plus reasonable medical costs from the last 60 days of the deceased’s final illness. An interested party files an informal application, and if the judge is satisfied, the court authorizes distribution by letter without opening a full case.6Florida Legislature. Florida Code 735.301 – Disposition Without Administration
Summary Administration
Summary administration is available when the value of the estate subject to administration, minus exempt property, is $75,000 or less. It is also available regardless of value if the person has been dead for more than two years.7Florida Senate. Florida Code Chapter 735 – Probate Code: Small Estates No personal representative is appointed. The court reviews the petition and, if it checks out, enters an Order of Summary Administration that directs immediate distribution.8Circuit Court of the Fifth Judicial Circuit. Order of Summary Administration It can wrap up in weeks.
Formal Administration
Estates over the $75,000 threshold, or any estate that needs an active manager, go through formal administration. A personal representative is appointed, assets are inventoried, creditors are notified, debts are paid, and the balance is distributed under court supervision. Formal administration typically runs six months to a year, longer if the estate is contested or complex.
Who Can Serve as Personal Representative
Because there is no will nominating someone, the court works through a preference order set by Section 733.301. The surviving spouse comes first. Then the person selected by a majority in interest of the heirs. Then the heir nearest in degree of kinship. If several qualified people apply at the same level, the court picks the one it finds best qualified.9Florida Legislature. Florida Code 733.301 – Preference in Appointment of Personal Representative
Florida limits who can serve from out of state. A non-resident qualifies only if they are the deceased’s spouse, sibling, parent, child (including by adoption), aunt, uncle, nephew, niece, or someone related by direct bloodline. A non-resident friend or business associate cannot serve.10Florida Legislature. Florida Code 733.304 – Nonresidents
Because there is no will to waive it, the personal representative generally must post a surety bond that protects the heirs and creditors against mismanagement. The court can waive the bond on petition, but that waiver is not automatic.11Florida Legislature. Florida Code 733.402 – Bond of Fiduciary; When Required; Form
What It Costs and What You’ll Need to File
To open a case you need an original death certificate, which establishes both the death and Florida residency. Assemble a complete list of heirs with names, addresses, and relationships, plus an inventory of known assets and their estimated values. The estate will also need a federal Employer Identification Number if it will earn income or if the personal representative needs to open an estate bank account; apply online or by filing IRS Form SS-4.12Internal Revenue Service. Application for Employer Identification Number
Court filing fees vary by county and by procedure. Summary administration generally costs $235 for estates valued at $1,000 or less and $345 above that; formal administration runs $400.13Orange County Clerk of Courts. Probate Filing Fees14Pasco County Clerk, FL. Probate/Estate Fees and Costs
Florida is one of the few states with a statutory fee schedule for probate attorneys. For formal administration, these fees are presumed reasonable for ordinary services:
- Estates up to $40,000: $1,500.
- $40,001 to $70,000: an additional $750.
- $70,001 to $100,000: an additional $750.
- $100,001 to $1 million: 3% of the value above $100,000.
- $1 million to $3 million: 2.5%.
- $3 million to $5 million: 2%.
- Above $5 million: declining rates from 1.5% down to 1%.
Extraordinary work like contested litigation or tax return preparation is billed separately.15Florida Legislature. Florida Code 733.6171 – Compensation of Attorney for the Personal Representative The personal representative is also entitled to compensation, calculated at 3% on the first $1 million of estate value, 2.5% between $1 million and $5 million, and declining rates above that.16Florida Legislature. Florida Code 733.617 – Compensation of Personal Representative
Filing happens in the probate division of the circuit court in the county where the deceased lived, through the statewide Florida Courts E-Filing Portal.17Florida Courts E-Filing Authority. Florida Courts E-Filing Authority
Creditors, Distribution, and Closing the Estate
In formal administration, the personal representative must publish a Notice to Creditors in a local newspaper once a week for two consecutive weeks.18Florida Legislature. Florida Code 733.2121 – Notice to Creditors; Filing of Claims Creditors then have three months from the first publication to file claims. A creditor entitled to individual service gets 30 days from that service if later. Miss either deadline and the claim is barred forever.19Florida Legislature. Florida Code 733.702 – Limitations on Presentation of Claims
Valid debts must be paid before any heir receives a distribution. Funeral expenses and costs of administration generally take priority, followed by taxes and other obligations. A personal representative who distributes to heirs before resolving creditor claims can be held personally liable for unpaid debts.
Once the creditor period closes and debts are paid, the personal representative distributes what remains under the intestate succession rules, files a final accounting that shows every dollar in and out, and files a Petition for Discharge. The judge reviews the accounting and enters an Order of Discharge, which formally closes the estate and releases the representative from further liability.20Florida Supreme Court. Florida Probate Rule 5.400 – Distribution and Discharge
Federal Tax and Benefit Steps
Florida has no state estate tax and no state income tax, but two federal items commonly apply. An estate that earns $600 or more in gross income during administration, from interest, rent, or asset sales, must file IRS Form 1041, the fiduciary income tax return. This catches most estates that hold interest-bearing accounts or real property for any meaningful period.
The federal estate tax applies for 2026 only to estates exceeding $15,000,000.21Internal Revenue Service. What’s New – Estate and Gift Tax Estates above that threshold file Form 706 within nine months of death, with a six-month extension available on Form 4768 filed before the original deadline.22Internal Revenue Service. Frequently Asked Questions on Estate Taxes Most Florida estates fall well below that number, but a professional valuation of significant assets confirms whether a filing is required.
A few loose ends often get missed. Federal student loans, including Parent PLUS loans when the student on whose behalf they were taken has died, are cancelled upon the borrower’s death; the personal representative sends a death certificate to the loan servicer or the U.S. Department of Education to have the debt discharged. Funeral homes usually report deaths to the Social Security Administration, but if none was involved, call the SSA at 1-800-772-1213 to stop benefit payments and ask about survivor benefits.23Social Security Administration. What to Do When Someone Dies