Florida Probate
Questions, Answered.
Losing a loved one is difficult enough without having to navigate unfamiliar legal procedures. This guide answers the questions families ask most often about Florida probate - in plain English.
FLORIDA PROBATE GUIDE
TOPICS COVERED
(click to jump to the section you are most interested in)
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What is probate?
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Is probate always required in Florida?
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How long does probate take?
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What is the difference between Formal and Summary Administration?
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How much does probate cost?
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Can probate be avoided?
PERSONAL REPRESENTATIVE
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What is a Personal Representative?
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Who can serve as Personal Representative?
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Can an out-of-state resident serve?
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Does the Personal Representative get paid?
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Can the Personal Representative sell property?
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Can beneficiaries remove the Personal Representative?
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What are the Personal Representative's fiduciary duties?
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Does the Personal Representative have to provide an accounting?
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Can a Personal Representative also be a beneficiary?
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What happens if the Personal Representative dies?
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What assets go through probate?
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What assets avoid probate?
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Do bank accounts go through probate?
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Does a vehicle go through probate?
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Do firearms go through probate?
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What happens to a safe deposit box?
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What happens to digital assets?
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What happens to cryptocurrency?
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Does having a Will avoid probate?
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What happens if someone dies without a Will?
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What if the original Will cannot be found?
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Can a handwritten Will be admitted to probate?
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Can a Will be changed after death?
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Can a Will be contested?
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How long do I have to contest a Will?
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Do all debts have to be paid?
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Can creditors force probate?
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What if there isn't enough money to pay creditors?
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How long do creditors have to file claims?
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Are funeral expenses paid first?
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Can medical bills be collected?
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What happens to credit card debt?
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Can beneficiaries become personally liable?
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Does Florida homestead avoid probate?
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Who inherits the homestead?
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Can the Personal Representative sell the homestead?
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What happens if there are minor children?
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Can inherited property be sold during probate?
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Can an heir move into the house?
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Who pays the mortgage?
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Who pays the property taxes?
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Does my spouse automatically inherit everything?
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What is the elective share?
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What is exempt property?
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What is the family allowance?
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What if there are children from another marriage?
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What happens if there is no surviving spouse?
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Can a spouse be disinherited?
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Does a Revocable Trust avoid probate?
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Can a Trust be contested?
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What happens if assets were never transferred into the Trust?
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Can a Trustee also be a beneficiary?
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Does a Trust eliminate creditor claims?
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When is probate still necessary if there's a Trust?
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Does Florida have an inheritance tax?
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Does Florida have an estate tax?
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What is a step-up in basis?
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Are inherited IRAs taxable?
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Does the estate need to file tax returns?
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When is a federal estate tax return required?
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What if the beneficiaries disagree?
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Can mediation resolve probate disputes?
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Can someone object to the inventory?
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Can someone object to attorney's fees?
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What if estate assets are missing?
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What if someone stole property before death?
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Can the court reopen probate?
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Do I need a probate attorney?
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Can probate be opened years later?
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What documents should I bring?
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Can I probate an estate without a death certificate?
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What happens if an heir cannot be located?
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What if a beneficiary dies before distribution?
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Can probate be transferred to another county?
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What is Ancillary Probate?
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Can probate be expedited?
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How do I schedule a consultation?
Florida Probate Frequently Asked Questions
Answers to the Questions We Hear Most Often About Florida Probate
The probate process can seem overwhelming, especially after the loss of a loved one. Below are answers to many of the questions we hear from clients throughout Florida. Every estate is unique, so if your situation is different, we encourage you to schedule a consultation.
GETTING STARTED
What is probate?
Probate is the court-supervised legal process used to identify a deceased person's assets, pay creditors, and distribute property to the rightful beneficiaries or heirs.
Is probate always required in Florida?
No. Some assets pass outside probate, including jointly owned property with rights of survivorship, beneficiary-designated accounts, life insurance, payable-on-death accounts, transfer-on-death accounts, and assets owned by a properly funded Revocable Living Trust.
How long does probate take?
Every estate is different.
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Summary Administration: often 1–3 months
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Formal Administration: typically 6–12 months
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Complex or contested estates: one year or longer
What is the difference between Summary Administration and Formal Administration?
Summary Administration is a simplified probate procedure available for certain smaller estates or when the decedent has been deceased for more than two years. Read more here.
Formal Administration is the standard probate process involving appointment of a Personal Representative. Read more here.
Can probate be avoided?
Sometimes. Proper estate planning using Revocable Living Trusts, beneficiary designations, Lady Bird Deeds, and proper asset titling can significantly reduce or eliminate probate. Read more here.
PERSONAL REPRESENTATIVE
What is a Personal Representative?
A Personal Representative (formerly called an executor in some states) is the person appointed by the probate court to administer a deceased person's estate. The Personal Representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries. Responsibilities typically include collecting assets, paying valid debts, filing required tax returns, managing estate property, and distributing assets according to the Will or Florida law.
Who can serve as Personal Representative?
Florida law limits who may serve as a Personal Representative. Generally, a Personal Representative must be at least 18 years old, mentally competent, and either:
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A Florida resident; or
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A close relative of the deceased, even if living outside Florida.
Corporations authorized to act as fiduciaries in Florida may also qualify. The probate court must formally appoint the Personal Representative before he or she has authority to act.
Can an out-of-state resident serve as Personal Representative?
Sometimes. Florida law generally allows certain close relatives—such as a spouse, child, parent, sibling, or other qualifying family member—to serve even if they live outside Florida. Non-residents who are not closely related to the decedent generally cannot serve as Personal Representative.
Does the Personal Representative get paid?
Yes. Florida law allows a Personal Representative to receive reasonable compensation for administering the estate. In many cases, the compensation is based on a statutory fee schedule tied to the value of the probate estate, although additional compensation may be appropriate for extraordinary services.
What are the duties of a Personal Representative?
A Personal Representative has numerous responsibilities throughout the probate process, including:
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Locating and safeguarding estate assets
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Opening the probate estate
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Providing notice to beneficiaries and creditors
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Preparing an inventory of estate assets
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Paying valid debts and expenses
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Filing required tax returns
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Managing estate property
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Distributing assets to beneficiaries
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Closing the estate
Because the Personal Representative acts as a fiduciary, every decision must be made in the best interests of the estate.
Can the Personal Representative sell estate property?
Often, yes. Depending on the terms of the Will and the powers granted by Florida law, a Personal Representative may be able to sell estate assets, including real estate. In some situations, court approval or beneficiary consent may be required before a sale can occur.
Can beneficiaries/heirs remove the Personal Representative?
Yes. A Florida probate court may remove a Personal Representative for reasons such as:
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Breaching fiduciary duties
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Mismanaging estate assets
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Failing to perform required responsibilities
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Conflicts of interest
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Incapacity
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Misconduct or dishonest
Removal requires court approval and is generally reserved for significant problems rather than simple disagreements.
What is a fiduciary duty?
A fiduciary duty is the highest legal duty recognized under Florida law. A Personal Representative must act honestly, prudently, and solely in the best interests of the estate and its beneficiaries. Personal Representatives must avoid self-dealing, keep accurate records, preserve estate assets, and treat beneficiaries fairly.
Does the Personal Representative have to provide an accounting?
In many estates, yes. Florida law generally requires the Personal Representative to maintain accurate financial records and, unless waived or otherwise excused, provide an accounting showing all estate receipts, expenses, gains, losses, and distributions. Beneficiaries have the right to review the accounting and raise objections when appropriate.
Can the Personal Representative also be a beneficiary?
Yes. In fact, it is very common for a surviving spouse, adult child, or other beneficiary to serve as Personal Representative. Serving in both roles is permitted under Florida law, provided the Personal Representative fulfills his or her fiduciary duties and administers the estate fairly and impartially.
What happens if the Personal Representative dies or resigns?
If a Personal Representative dies, resigns, or becomes unable to continue serving, the probate court will appoint a successor Personal Representative. If the Will names an alternate, the court will generally appoint that individual if he or she is qualified. Otherwise, the court will appoint another qualified person according to Florida law.
Can a Personal Representative be personally liable?
Yes. A Personal Representative who breaches fiduciary duties, misappropriates estate assets, fails to follow court orders, or negligently administers the estate may be held personally liable for losses suffered by the estate or its beneficiaries. This is one reason many Personal Representatives choose to work closely with an experienced Florida probate attorney.
Can a Personal Representative distribute assets before probate is complete?
Generally, no. Before making distributions, the Personal Representative should ensure that creditor claims, taxes, administrative expenses, and other estate obligations have been properly addressed. Premature distributions can expose the Personal Representative to personal liability if the estate later lacks sufficient funds to satisfy its obligations.
Does a Personal Representative have to hire a probate attorney?
In most Formal Administration cases, yes. Florida law generally requires the Personal Representative to be represented by an attorney throughout the probate process, except in very limited circumstances. An experienced probate attorney helps ensure that deadlines are met, court filings are properly prepared, and the estate is administered in compliance with Florida law.
PROBATE ASSETS
What assets go through probate?
Generally, probate is required for assets that were owned solely in the deceased person's name and do not have a designated beneficiary or another automatic method of transfer.
Common probate assets include:
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Real estate titled solely in the decedent's name
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Individual bank accounts
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Investment accounts without beneficiaries
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Vehicles titled solely in the decedent's name
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Business interests
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Personal property such as jewelry, furniture, artwork, and collectibles
Whether an asset requires probate depends on how it is owned, not simply what type of asset it is.
What assets do not go through probate?
Many assets transfer automatically to another person and never become part of the probate estate.
Examples include:
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Assets held in a Revocable Living Trust
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Jointly owned property with rights of survivorship
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Life insurance with a living beneficiary
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Retirement accounts with designated beneficiaries
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Payable-on-Death (POD) bank accounts
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Transfer-on-Death (TOD) investment accounts
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Property transferred by a Lady Bird Deed
Proper estate planning often focuses on structuring assets to minimize the need for probate.
Do bank accounts go through probate?
It depends. A bank account owned solely by the deceased person without a payable-on-death beneficiary generally requires probate.
However, accounts that are jointly owned with rights of survivorship or have a valid POD beneficiary usually pass directly to the surviving owner or beneficiary without probate.
Does a house always go through probate?
No. Whether real estate requires probate depends upon how title was held at the time of death.
For example, probate may not be required if the property:
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Is owned by a properly funded Revocable Trust;
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Is subject to a valid Lady Bird Deed;
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Is owned jointly with rights of survivorship; or
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Passes automatically by operation of law.
Even when probate is not required to transfer ownership, court proceedings may still be necessary to determine Florida Homestead rights.
Do vehicles go through probate?
Sometimes. A vehicle titled solely in the deceased person's name may require probate before ownership can be transferred.
However, certain simplified procedures may be available depending upon the value of the estate and the circumstances of the decedent's death.
What happens to firearms after someone dies?
Firearms are generally considered personal property and become part of the probate estate unless ownership passes by another legal method.
Transfers must also comply with applicable federal and Florida firearms laws. Certain regulated firearms, such as those governed by the National Firearms Act (NFA), are subject to additional legal requirements before they may be transferred.
What happens to a safe deposit box?
A safe deposit box does not automatically become accessible upon the owner's death.
Florida law permits limited access under certain circumstances, such as locating a Will, burial instructions, or life insurance policies. Once a Personal Representative is appointed, he or she generally has authority to access the contents as part of the estate administration.
What happens to digital assets?
Digital assets have become an increasingly important part of estate administration.
Examples include:
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Email accounts
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Social media accounts
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Online banking
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Cloud storage
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Digital photographs
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Cryptocurrency wallets
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Domain names
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Online businesses
Access to these assets is governed by Florida law, federal privacy laws, the terms of service of the provider, and any estate planning documents left by the deceased.
Does cryptocurrency go through probate?
Yes, if the cryptocurrency was owned solely by the deceased and no trust or other transfer mechanism exists.
Because cryptocurrency is protected by private keys and digital security measures, locating and accessing these assets can be one of the most challenging aspects of estate administration.
Proper estate planning should include instructions for identifying and accessing digital assets.
Do life insurance proceeds go through probate?
Usually not. If a valid beneficiary is named and survives the insured, the proceeds are generally paid directly to that beneficiary without probate.
However, life insurance may become part of the probate estate if:
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No beneficiary is named;
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The beneficiary has predeceased the insured and no contingent beneficiary exists; or
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The estate itself is named as the beneficiary.
Do retirement accounts go through probate?
Generally, no. IRAs, 401(k)s, pensions, and similar retirement accounts typically pass directly to the designated beneficiary.
If no beneficiary survives or no beneficiary designation exists, however, the account may become payable to the estate and require probate.
Do jointly owned assets go through probate?
Usually not. Assets owned as joint tenants with rights of survivorship or tenants by the entirety generally pass automatically to the surviving owner upon death.
However, simply having two names on an account or deed does not always create survivorship rights. The manner in which title was created is important.
What happens to a business when the owner dies?
It depends on the type of business and the governing documents.
Ownership interests in:
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LLCs
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Corporations
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Partnerships
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Sole proprietorships
may become probate assets unless transferred through a Trust, Buy-Sell Agreement, beneficiary designation, or other estate planning strategy.
Many business owners benefit from succession planning to ensure the business can continue operating after their death.
Are household belongings subject to probate?
Yes, unless they pass by another legal mechanism.
Furniture, jewelry, artwork, antiques, tools, collectibles, firearms, and other personal belongings generally become probate assets if they were owned solely by the decedent.
Certain items, however, may qualify as Exempt Property under Florida law and pass directly to the surviving spouse or, in some cases, the decedent's children.
Can assets be added to probate after the estate has been opened?
Yes. It is not uncommon for additional assets to be discovered after probate has begun. Newly discovered bank accounts, investment accounts, refund checks, mineral interests, or other property can generally be added to the estate and administered as part of the probate process.
WILLS
Does having a Will avoid probate?
No. One of the biggest misconceptions is that having a Will avoids probate. A Will simply tells the probate court who should receive your probate assets and who you want to serve as your Personal Representative. In most cases, a Will must still be admitted to probate before the Personal Representative has authority to administer the estate.
What happens if someone dies without a Will?
When a person dies without a valid Will, they are said to have died intestate. Florida law determines who inherits the person's probate assets according to the state's intestacy statutes. Depending on the family circumstances, the surviving spouse, children, parents, siblings, or more distant relatives may inherit the estate.
Does a Will control all of a person's assets?
No. A Will generally controls only assets that become part of the probate estate.
Many assets pass outside of probate regardless of what the Will says, including:
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Assets held in a Revocable Living Trust
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Life insurance with named beneficiaries
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Retirement accounts with designated beneficiaries
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Payable-on-Death (POD) accounts
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Transfer-on-Death (TOD) accounts
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Jointly owned property with rights of survivorship
Because of this, it is important to coordinate your Will with your overall estate plan.
Can a Will be changed after someone dies?
No. Once the person who made the Will has died, the Will generally cannot be changed. The probate court's role is to determine whether the Will is valid and to carry out the decedent's wishes as expressed in the document, subject to Florida law.
What if the original Will cannot be found?
Florida law generally requires the original Will to be filed with the probate court. If the original cannot be located, there is a legal presumption that the decedent intended to revoke it.
However, that presumption may be overcome with sufficient evidence. In some cases, a copy of the Will may be admitted to probate if the court is satisfied that the original was not intentionally revoked.
Can a copy of a Will be admitted to probate?
Sometimes. A copy of a lost or destroyed Will may be admitted to probate, but only if the requirements of Florida law are satisfied. The person seeking to probate the copy has the burden of proving both the contents of the Will and that it was not revoked before the decedent's death.
Are handwritten Wills valid in Florida?
Generally, no. Florida does not recognize handwritten (holographic) Wills unless they are executed with the same legal formalities required for any other Will. Simply writing your wishes on a piece of paper and signing it is usually not sufficient.
What makes a Will valid in Florida?
To be valid, a Florida Will generally must:
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Be in writing;
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Be signed by the person making the Will (or by someone else at that person's direction and in their presence); and
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Be signed by two witnesses in the presence of the testator and each other.
Failure to comply with these legal requirements may result in the Will being declared invalid.
Can a Will be contested?
Yes. An interested person may challenge the validity of a Will in probate court. Common grounds for contesting a Will include:
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Lack of testamentary capacity
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Undue influence
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Fraud
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Duress
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Mistake
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Improper execution
Not every disagreement with the terms of a Will is a valid legal basis for a contest.
How long do I have to contest a Will?
The deadline depends on the circumstances and whether the interested person received formal notice of the probate proceedings. In many cases, strict deadlines apply, and the right to challenge the Will may be permanently lost if action is not taken promptly. Anyone considering a Will contest should consult a probate attorney as soon as possible.
Can someone be disinherited by a Will?
Generally, yes. Subject to certain exceptions under Florida law—such as a surviving spouse's elective share and constitutional homestead protections—a person may choose to leave their property to whomever they wish. However, attempts to disinherit a spouse or avoid Florida homestead laws may not always be effective.
What happens if a beneficiary dies before the person who made the Will?
The answer depends on the language of the Will and Florida law. Some Wills provide alternate beneficiaries. In other cases, Florida's anti-lapse statute may allow certain gifts to pass to the deceased beneficiary's descendants. If neither applies, the gift may become part of the residue of the estate or pass under the intestacy statutes.
Can a Personal Representative ignore the instructions in the Will?
No. A Personal Representative has a fiduciary duty to administer the estate according to the terms of the Will and Florida law. If the Personal Representative fails to follow the Will or otherwise breaches fiduciary duties, the probate court may order corrective action or remove the Personal Representative.
Does every Will have to be filed with the court?
Yes. Florida law requires the person in possession of the original Will to deposit it with the clerk of the circuit court in the county where the decedent resided within 10 days after learning of the decedent's death. Filing the Will does not necessarily mean that a probate estate must be opened immediately, but the Will must still be deposited with the court.
CREDITORS
Do all debts have to be paid after someone dies?
Not necessarily. While valid debts generally must be paid before beneficiaries receive their inheritances, not every debt is collectible. Florida probate law establishes procedures for notifying creditors, filing claims, and determining which claims are valid. Some claims may be barred if they are not timely filed, and certain assets may be exempt from creditor claims.
Who is responsible for paying the deceased person's debts?
The Personal Representative is responsible for administering the estate and paying valid creditor claims from estate assets. In most cases, family members and beneficiaries are not personally responsible for the deceased person's debts simply because they inherited property.
Can creditors force an estate to open probate?
Yes. If no probate estate has been opened, a creditor may petition the court to open an estate and appoint a Personal Representative in order to pursue collection of a valid claim. Whether doing so is worthwhile often depends on the nature and value of the estate's assets.
How long do creditors have to file a claim?
Florida law imposes strict deadlines for creditor claims. In many cases, known or reasonably ascertainable creditors must receive formal notice, after which they generally have 30 days to file a claim. Unknown creditors are generally barred if they do not file a claim within three months after the first publication of the Notice to Creditors. Different deadlines may apply depending on the circumstances, so timely legal advice is important.
What happens if there is not enough money to pay all of the debts?
Florida law establishes an order of priority for paying creditor claims. If the estate is insolvent, higher-priority claims are paid first, and lower-priority creditors may receive only partial payment—or no payment at all. Beneficiaries generally do not receive distributions until valid creditor claims and estate expenses have been addressed.
Are funeral expenses paid before other debts?
Generally, yes. Funeral expenses are given a high priority under Florida law, although they are subject to statutory limits for priority purposes. Funeral expenses are typically paid before most unsecured debts, but after certain administrative expenses of the estate.
Are medical bills forgiven when someone dies?
No. Outstanding medical bills remain debts of the estate and may be paid from estate assets if properly claimed. However, surviving family members are not automatically responsible for these debts unless they have separately agreed to be liable or another legal basis exists.
What happens to credit card debt after death?
Credit card debt generally becomes a claim against the probate estate. If the estate has sufficient assets, valid claims may be paid during probate. If the estate is insolvent, credit card companies may receive only partial payment or no payment at all, depending on the priority of other claims.
Can beneficiaries be personally responsible for the deceased person's debts?
Usually not. Simply inheriting property does not make a beneficiary personally liable for the decedent's debts. However, beneficiaries who receive estate assets before creditor claims are resolved may, in certain circumstances, be required to return assets or funds to satisfy valid claims.
What if a creditor files a claim that is incorrect?
The Personal Representative has the right to object to a creditor's claim. If an objection is filed, the creditor generally must file an independent lawsuit within the time required by Florida law to pursue the claim. Failure to do so may result in the claim being barred.
Can the Personal Representative negotiate with creditors?
Often, yes. In appropriate circumstances, a Personal Representative may negotiate settlements with creditors if doing so benefits the estate. Any settlement should be carefully evaluated to ensure it complies with the Personal Representative's fiduciary duties and, when necessary, receives court approval.
What debts have priority during probate?
Florida law establishes a statutory order for payment of claims. Although each estate is different, higher-priority claims generally include:
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Costs of administering the estate
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Reasonable funeral expenses
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Certain taxes
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Expenses of the decedent's last illness
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Family allowance
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Other creditor claims in the order provided by law
A Personal Representative should not pay claims out of order without understanding Florida's statutory priorities.
Can a creditor take the family home?
It depends. Florida's constitutional homestead protections often shield a decedent's homestead from the claims of most creditors. However, important exceptions exist, including claims for mortgages, property taxes, mechanics' liens, and certain other obligations. Whether a particular creditor can reach homestead property depends on the specific facts and applicable law.
What happens if someone continues using the deceased person's credit cards?
Using a deceased person's credit card without legal authority may constitute fraud or another violation of law. After death, only the Personal Representative has authority to administer estate assets and obligations. Family members should not continue using the decedent's accounts unless specifically authorized by law.
Can a creditor reopen a closed probate estate?
Sometimes. If additional assets are discovered or other circumstances justify further administration, the court may allow additional probate proceedings. Whether a creditor can pursue a claim after an estate has been closed depends on the facts, the applicable statutes, and whether legal deadlines have expired.
REAL ESTATE & HOMESTEAD
Does Florida homestead avoid probate?
Not necessarily. Many people believe that homestead property automatically avoids probate, but that is not always true. While Florida's homestead laws provide significant protections, probate proceedings are often still necessary to determine ownership, confirm the homestead status of the property, and clear title for future sales or refinancing.
What is Florida Homestead?
Florida Homestead refers to a person's primary residence that qualifies for certain constitutional protections under Florida law. These protections may include:
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Restrictions on how the property can be devised at death
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Protection from many creditor claims
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Certain property tax benefits
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Special inheritance rules for surviving spouses and descendants
Homestead rights are unique and often require careful legal analysis during probate.
Who inherits the homestead after someone dies?
The answer depends on several factors, including:
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Whether the decedent was married
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Whether the decedent had descendants
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Whether any descendants are minors
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How title to the property was held
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Whether the property qualifies as protected homestead
Florida's Constitution contains special rules that may override the provisions of a Will.
Does a surviving spouse automatically receive the house?
Not always. Depending upon the family circumstances, the surviving spouse may:
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Receive full ownership of the property;
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Receive a life estate with the descendants receiving the remainder interest; or
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Elect to receive an undivided one-half interest as a tenant in common with the descendants.
Because the surviving spouse's election must generally be made within the time allowed by Florida law, it is important to seek legal advice promptly.
Can the Personal Representative sell the homestead?
Usually not without proper authority.
Unlike many other estate assets, homestead property often passes directly to the heirs or devisees and is generally not considered an asset available to pay ordinary creditor claims. Whether the Personal Representative has authority to sell the property depends on the facts of the estate, the terms of the Will, the consent of the owners, and, in some cases, court approval.
Can estate real estate be sold during probate?
Yes. Non-homestead real estate is frequently sold during probate. Depending on the Will and Florida law, the Personal Representative may have authority to sell the property as part of administering the estate. In some situations, court approval or the consent of interested persons may be required.
Can beneficiaries sell inherited real estate before probate is complete?
Generally, no. Until ownership has been legally established and the appropriate authority exists to convey title, beneficiaries usually cannot sell estate property. Attempting to sell real estate before probate issues have been resolved may delay or complicate the transaction.
Can an heir move into the decedent's home?
Not automatically. Unless the heir already has a legal right to occupy the property, moving into the home before ownership has been determined can create disputes among beneficiaries and complicate the probate process. The right to possess the property depends on the circumstances of the estate and the rights of the parties involved.
Who is responsible for paying the mortgage after someone dies?
The mortgage does not disappear upon death.
Mortgage payments generally remain the responsibility of whoever becomes legally responsible for the property. During probate, the Personal Representative or those occupying the property may need to ensure that payments continue in order to avoid foreclosure.
Who pays the property taxes during probate?
Property taxes continue to accrue after death.
The estate or the property's owners remain responsible for paying property taxes, insurance premiums, and other carrying costs. Failing to keep these obligations current can reduce the value of the estate and create unnecessary complications.
Can a house be transferred without probate?
Sometimes. Probate may be avoided if the property:
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Is owned by a properly funded Revocable Living Trust;
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Is held as tenants by the entirety or with rights of survivorship;
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Was transferred by a valid Lady Bird Deed; or
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Passes by another legal method outside of probate.
The method of ownership determines whether probate is required.
What happens if the deceased owned property in another state?
Real estate located outside Florida is generally governed by the laws of the state where the property is located. In many cases, a separate probate proceeding—known as ancillary probate—may be required in that state to transfer ownership.
Can a house be sold if one heir refuses?
Sometimes. If multiple people inherit real estate and cannot agree on whether to sell, legal action may be necessary. Depending on the circumstances, the owners may negotiate a buyout, enter into a settlement agreement, or file a partition action asking the court to resolve the dispute.
Does Homestead protect the property from creditors?
In many cases, yes.
Florida's homestead protections generally shield a primary residence from the claims of most creditors. However, important exceptions exist, including:
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Mortgage lenders
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Property taxes
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Mechanics' and construction liens
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Certain governmental obligations
Because the rules are complex, homestead should always be evaluated on a case-by-case basis.
What is an Order Determining Homestead?
An Order Determining Homestead is a court order entered during probate that confirms the property's homestead status and identifies who inherited the property. Title companies often require this order before issuing title insurance for a future sale or refinance.
SURVIVING SPOUSES
Does my spouse automatically inherit everything if I die?
Not necessarily. Whether a surviving spouse inherits all of a deceased spouse's property depends on several factors, including whether there is a valid Will, whether the decedent had children from a previous relationship, how assets are titled, whether beneficiary designations exist, and whether the property qualifies as Florida homestead. Many assets also pass outside of probate.
What rights does a surviving spouse have under Florida law?
Florida law provides surviving spouses with several important protections, which may include:
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Homestead rights
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Elective Share
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Family Allowance
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Exempt Property
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Intestate inheritance rights
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Preference to serve as Personal Representative
The rights available in a particular case depend on the family's circumstances and the estate planning documents left by the decedent.
What is the Elective Share?
Florida law generally allows a surviving spouse to claim 30% of the Elective Estate, even if the deceased spouse attempted to leave little or nothing to the surviving spouse through a Will or Trust.
The Elective Estate may include certain probate and non-probate assets, making the calculation much broader than many people realize.
Can a spouse be completely disinherited in Florida?
Not usually. Although Florida residents have significant freedom to decide who inherits their property, the law provides important protections for surviving spouses. Depending on the circumstances, a surviving spouse may have the right to claim an Elective Share, Exempt Property, a Family Allowance, and Homestead rights, even if the Will attempts to disinherit them.
What is the Family Allowance?
Florida law allows the probate court to award a Family Allowance of up to $18,000 to assist a surviving spouse and, in some cases, dependent children during the administration of the estate. This allowance is intended to help provide financial support while the probate process is pending.
What is Exempt Property?
Florida law allows certain personal property to pass directly to the surviving spouse—or, if there is no surviving spouse, to the decedent's children—without becoming part of the general probate estate for distribution purposes.
Exempt Property may include:
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Household furniture and furnishings
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Appliances
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Certain electronics
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Two motor vehicles meeting statutory requirements
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Qualified educational savings accounts
The availability of Exempt Property depends on the specific facts of the estate.
Does a surviving spouse automatically inherit the family home?
Not always. Florida's homestead laws contain unique constitutional protections that determine who inherits the family home. Depending on the circumstances, the surviving spouse may receive full ownership, a life estate, or have the right to elect an undivided one-half interest as a tenant in common with the decedent's descendants.
What is the difference between a life estate and a one-half interest?
When a deceased spouse is survived by both a spouse and descendants, Florida law may allow the surviving spouse to choose between:
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A life estate in the homestead, with the descendants receiving the remainder interest upon the spouse's death; or
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An undivided one-half interest in the property as a tenant in common, with the descendants immediately owning the remaining one-half interest.
This election must generally be made within the time allowed by Florida law and should not be made without understanding its legal and financial consequences.
What happens if my spouse dies without a Will?
If your spouse dies intestate (without a valid Will), Florida's intestacy laws determine who inherits the probate estate. In some cases, the surviving spouse inherits the entire estate. In others—particularly when there are children from a prior relationship—the surviving spouse may inherit only a portion of the estate.
Can a surviving spouse serve as the Personal Representative?
Often, yes. Florida law gives a surviving spouse priority to serve as Personal Representative in many situations, particularly when there is no valid appointment in a Will or the nominated Personal Representative cannot serve. The court must still formally appoint the Personal Representative before he or she has authority to act.
Does a Revocable Living Trust eliminate a surviving spouse's rights?
Not necessarily. Many people believe that placing assets in a Revocable Living Trust eliminates a surviving spouse's legal rights, but that is not always true. Depending on the circumstances, trust assets may still be considered when calculating the Elective Estate, and Florida's Homestead protections may still apply.
Can a prenuptial or postnuptial agreement affect a surviving spouse's rights?
Yes. A valid prenuptial or postnuptial agreement may waive or modify certain rights that a surviving spouse would otherwise have under Florida law, including the Elective Share, Homestead rights, Exempt Property, and Family Allowance. Whether an agreement is enforceable depends on its terms and the circumstances surrounding its execution.
How long does a surviving spouse have to exercise certain rights?
Many surviving spouse rights are subject to strict statutory deadlines. For example, there are deadlines for filing an Elective Share election and for electing a one-half interest in homestead instead of a life estate. Missing these deadlines may result in the permanent loss of valuable rights. A surviving spouse should consult a probate attorney as soon as possible after the death of a spouse.
TAXES
Does Florida have an inheritance tax?
No. Florida does not impose a state inheritance tax. Beneficiaries generally do not pay Florida tax simply because they inherit money or property from a deceased person.
Does Florida have an estate tax?
No. Florida does not have a separate state estate tax. However, very large estates may be subject to the federal estate tax, depending on the value of the estate and the federal exemption amount in effect at the time of death.
Will I have to pay income tax on my inheritance?
Generally, no. In most cases, money or property inherited from a deceased person is not considered taxable income to the beneficiary. However, income earned after the inheritance—such as interest, dividends, rental income, or capital gains—may be taxable.
What is a "step-up" in basis?
One of the most valuable tax benefits available after death is the step-up in basis. In many cases, inherited assets receive a new tax basis equal to their fair market value on the date of the owner's death. This often reduces or eliminates capital gains taxes if the asset is later sold.
Does inherited real estate receive a step-up in basis?
Often, yes. Real estate inherited from a deceased owner typically receives a step-up in basis to its fair market value as of the date of death. This can significantly reduce capital gains taxes if the property is sold shortly after inheritance.
Will I owe capital gains tax if I sell inherited property?
Possibly. Capital gains tax is generally calculated using the property's stepped-up basis rather than the original purchase price paid by the decedent. As a result, beneficiaries often owe little or no capital gains tax if the property is sold soon after it is inherited.
Are inherited retirement accounts taxable?
Often, yes. Although inherited retirement accounts usually avoid probate if they have a designated beneficiary, distributions from inherited traditional IRAs, 401(k)s, and similar retirement accounts may be subject to federal income tax. The tax treatment depends on the type of account, the beneficiary, and current tax laws.
Are life insurance proceeds taxable?
Generally, no. Life insurance proceeds paid to a named beneficiary are usually not subject to federal income tax. However, in certain situations, life insurance may be included in a taxable estate for federal estate tax purposes.
Does the estate have to file an income tax return?
Sometimes. A final individual income tax return must generally be filed for the deceased person if required under federal tax law. In addition, the estate itself may need to file a fiduciary income tax return if it earns sufficient income during the probate administration.
Who is responsible for filing the deceased person's tax returns?
The Personal Representative is generally responsible for ensuring that all required tax returns are filed and that any taxes owed by the estate are properly paid before distributing assets to the beneficiaries.
Can beneficiaries receive distributions before taxes are paid?
Generally, distributions should not be made until the Personal Representative has determined that taxes, creditor claims, and estate expenses have been properly addressed. Making premature distributions may expose the Personal Representative to personal liability if the estate later lacks sufficient funds to satisfy its obligations.
Are probate assets taxed differently than trust assets?
Not necessarily. Whether an asset passes through probate or through a Revocable Living Trust does not automatically determine its tax treatment. Income tax, capital gains tax, and estate tax consequences depend on the type of asset and applicable tax law—not simply whether probate was required.
What happens if the estate owes back taxes?
Outstanding federal or state tax obligations generally become debts of the estate. The Personal Representative has a duty to identify valid tax liabilities and ensure they are properly addressed before making final distributions to beneficiaries.
Should I talk to a probate attorney or a tax professional?
Many estates involve both legal and tax issues. An experienced probate attorney can guide you through the estate administration process and, when appropriate, work with a CPA or other tax professional to help ensure that all tax obligations are properly addressed.
TRUSTS
Does having a Revocable Living Trust avoid probate?
Often, yes—but only for assets that were actually transferred into the trust during the person's lifetime. Assets that remain titled in the decedent's individual name may still require probate, even if a Revocable Living Trust exists.
Does everything automatically go into my Trust when I die?
No. A trust controls only the assets that are titled in the name of the trust or otherwise made payable to the trust. Many people create a trust but never transfer their assets into it. Those assets may still require probate.
What happens if assets were never transferred into the Trust?
If an asset was left outside the trust, probate may be necessary to transfer ownership. Many Revocable Living Trusts include a Pour-Over Will, which directs probate assets into the trust after death. However, the existence of a Pour-Over Will does not eliminate the need for probate.
Can a Trust be challenged after someone dies?
Yes. Like a Will, a trust may be challenged under certain circumstances. Common grounds include:
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Lack of capacity
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Undue influence
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Fraud
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Duress
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Improper execution (when applicable)
Because trust litigation is often complex, anyone considering a challenge should seek legal advice promptly.
What is a Trustee?
A Trustee is the person or institution responsible for administering the trust according to its terms and applicable law. The Trustee has a fiduciary duty to act in the best interests of the beneficiaries and must manage trust assets prudently and impartially.
Can the Trustee also be a beneficiary?
Yes. It is very common for a surviving spouse, adult child, or other beneficiary to serve as Trustee. Serving in both roles is permitted under Florida law, provided the Trustee fulfills his or her fiduciary duties and treats all beneficiaries fairly.
Does a Revocable Living Trust protect assets from creditors?
Generally, no. During the trustmaker's lifetime, assets held in a Revocable Living Trust remain subject to the trustmaker's creditors because the trustmaker retains control over the assets.
Does a Revocable Living Trust eliminate a surviving spouse's rights?
Not necessarily. Many people believe they can disinherit a spouse simply by placing assets into a Revocable Living Trust. However, trust assets may still be included in the calculation of Florida's Elective Estate, and Florida Homestead laws may still apply.
Can a Trust own Florida Homestead property?
Yes. A properly drafted trust may own Florida Homestead property without necessarily affecting the owner's homestead protections. However, the trust must be carefully drafted to comply with Florida law, and special rules govern the transfer of homestead property at death.
Does having a Trust mean I never need probate?
No. Even when a Revocable Living Trust exists, probate may still be required if:
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Assets were left outside the trust.
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The decedent owned property solely in his or her name.
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A homestead determination is needed.
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Litigation arises regarding estate or trust assets.
A properly funded trust significantly reduces the likelihood of probate but does not guarantee that probate can always be avoided.
Can a Trustee sell trust property after someone dies?
Usually, yes. The Trustee generally has authority to manage and sell trust assets if permitted by the terms of the trust agreement and Florida law. Unlike a Personal Representative, the Trustee often does not need probate court approval before selling trust property.
What is the difference between a Trustee and a Personal Representative?
A Trustee administers assets owned by a trust, while a Personal Representative administers assets that pass through probate.
If a person has both a Revocable Living Trust and probate assets, it is possible for both a Trustee and a Personal Representative to be involved in administering different parts of the estate.
Are Trusts public records?
Generally, no. Unlike probate proceedings, which become part of the public court file, trust administration is usually private. This privacy is one of the reasons many people choose to incorporate a Revocable Living Trust into their estate plan.
Can beneficiaries demand information from a Trustee?
Yes. Trustees owe fiduciary duties to qualified beneficiaries and are generally required to provide certain information concerning the administration of the trust. Depending on the circumstances, beneficiaries may have the right to receive trust documents, accountings, and other information necessary to protect their interests.
Can an Irrevocable Trust avoid probate?
Often, yes. Assets that are properly transferred into an Irrevocable Trust during the grantor's lifetime generally do not become part of the probate estate because they are no longer owned individually by the deceased.
PROBATE LITIGATION
What is probate litigation?
Probate litigation involves legal disputes that arise during the administration of an estate. These disputes may involve the validity of a Will, the actions of a Personal Representative, disagreements among beneficiaries, creditor claims, or the ownership of estate assets. While many probate estates are administered without conflict, some require court intervention to resolve contested issues.
Can a Will be contested?
Yes. Florida law allows an interested person to challenge the validity of a Will under certain circumstances. Common grounds include:
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Lack of testamentary capacity
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Undue influence
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Fraud
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Duress
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Improper execution
Simply believing a Will is unfair is generally not enough to invalidate it.
How long do I have to contest a Will?
Florida law imposes strict deadlines for challenging a Will. In many cases, an interested person who receives formal notice must file a challenge within the time provided by law or lose the right to contest the Will. Because these deadlines can be very short, anyone considering a Will contest should consult an attorney promptly.
Can a Trust be challenged?
Yes. A Revocable Living Trust may be challenged on grounds similar to those used to contest a Will, including lack of capacity, undue influence, fraud, or duress. Trust litigation often involves complex factual and legal issues that require careful analysis.
What if I believe the Personal Representative is mismanaging the estate?
A Personal Representative has a fiduciary duty to administer the estate honestly, prudently, and in the best interests of the beneficiaries. If a Personal Representative is mismanaging estate assets, failing to perform required duties, or acting improperly, the probate court may intervene. Depending on the circumstances, the court may order an accounting, require corrective action, or remove the Personal Representative.
Can a Personal Representative be removed?
Yes. A Florida probate court may remove a Personal Representative for reasons such as:
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Breach of fiduciary duty
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Mismanagement of estate assets
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Conflicts of interest
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Failure to perform required duties
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Incapacity
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Misconduct or dishonesty
Removal requires court approval and is generally reserved for significant misconduct or legal disqualification.
Can beneficiaries request an accounting?
Yes. In many cases, beneficiaries are entitled to receive an accounting showing the estate's financial activity, including assets received, expenses paid, distributions made, and the remaining estate assets. If an accounting is inaccurate or incomplete, beneficiaries may file objections with the probate court.
What happens if estate assets are missing?
If assets appear to be missing, the Personal Representative has a duty to investigate. In some cases, property may have been transferred before death, overlooked during the administration, or improperly taken by another person. The probate court has authority to address disputes involving estate assets and, when appropriate, order their return.
What if someone took property before the decedent died?
Unfortunately, disputes sometimes arise when family members, caregivers, or others transfer money or property before death without proper authority. Depending on the circumstances, the estate may have legal remedies to recover those assets through probate or separate civil litigation.
Can a beneficiary object to attorney's fees?
Yes. Attorney's fees paid by the estate must be reasonable under Florida law. If a beneficiary believes that fees are excessive or improper, the beneficiary may ask the probate court to review the requested fees.
Can beneficiaries disagree about selling estate property?
Yes. Disputes frequently arise when beneficiaries cannot agree whether to sell inherited real estate or retain it. Depending on the circumstances, the disagreement may be resolved through negotiation, mediation, probate proceedings, or, after distribution, a partition action.
What is undue influence?
Undue influence occurs when someone exerts such pressure or control over another person that the resulting Will or Trust reflects the influencer's wishes rather than the true intentions of the person making the estate plan. Claims of undue influence often arise when an elderly or vulnerable person makes significant changes to an estate plan shortly before death.
Does every probate dispute go to trial?
No. Many probate disputes are resolved through negotiation or mediation before reaching trial. Settlement often allows families to resolve disagreements more quickly and with less expense than prolonged litigation.
Can mediation resolve probate disputes?
Often, yes. Mediation is commonly used to resolve disagreements involving Wills, Trusts, estate administration, and beneficiary rights. A successful mediation can save significant time, expense, and emotional stress while allowing the parties to reach a mutually acceptable resolution.
Can a probate estate be reopened?
Yes. In certain circumstances, a probate estate may be reopened after it has been closed. Common reasons include the discovery of additional assets, unresolved legal issues, or the need to complete unfinished estate administration. Whether reopening an estate is appropriate depends on the facts of the case.
Can someone challenge a beneficiary designation?
Sometimes. Although beneficiary designations generally pass assets outside of probate, they may be challenged in limited circumstances, such as allegations of fraud, undue influence, lack of capacity, or failure to comply with applicable law.
What if family members cannot agree?
Disagreements among family members are common during probate. The best solution depends on the nature of the dispute. Some disagreements can be resolved through communication or mediation, while others may require court intervention. An experienced probate attorney can help evaluate the available options and protect your legal rights.
MISCELLANEOUS
Do I need a probate attorney in Florida?
In most Formal Administration cases, yes. Florida law generally requires the Personal Representative to be represented by an attorney, except in very limited circumstances. Even when an attorney is not legally required, professional guidance can help avoid costly mistakes, missed deadlines, and disputes among beneficiaries.
Can probate be opened years after someone dies?
Yes. Florida law does not impose a strict deadline for opening probate in every case. Estates are sometimes opened many years after a person's death because property was recently discovered, title issues arose, or no one realized probate was necessary. The appropriate procedure depends on the circumstances of the estate.
What documents should I bring to my probate consultation?
The more information you can provide, the more helpful your consultation will be. Useful documents include:
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Certified Death Certificate
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Original Will and Codicils
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Trust documents
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Deeds and real estate records
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Bank and investment statements
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Vehicle titles
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Life insurance policies
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Retirement account statements
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Known debts and creditor information
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Names and contact information for heirs and beneficiaries
Don't worry if you don't have every document—an attorney can help you determine what is needed.
Can probate be completed without going to court?
Sometimes. Although probate is a court-supervised process, many estates require very few court appearances. In most uncontested probate cases, your attorney handles the necessary filings, and you may never need to appear before a judge.
Do all heirs have to agree before probate can begin?
No. Probate is initiated by filing the appropriate petition with the court. While disagreements among family members may arise during the administration of the estate, unanimous agreement among the heirs is generally not required to open probate.
What happens if an heir cannot be located?
The Personal Representative has a duty to make a diligent effort to locate heirs and beneficiaries. If someone cannot be found after reasonable efforts, additional legal procedures may be necessary before the estate can be closed. Depending on the circumstances, the court may authorize alternative methods of providing notice.
What happens if a beneficiary dies during probate?
The answer depends on several factors, including:
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Whether the beneficiary died before or after the decedent;
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The language of the Will or Trust;
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Whether Florida's anti-lapse statute applies; and
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Whether the beneficiary left surviving descendants.
Each situation must be evaluated based on the governing estate planning documents and applicable Florida law.
What is ancillary probate?
Ancillary probate is a separate probate proceeding that may be required when a Florida resident owns real estate located in another state, or when a non-Florida resident owns real estate located in Florida. Because real estate is governed by the law of the state where it is located, additional probate proceedings are sometimes necessary.
Can probate be expedited?
Certain estates may qualify for Summary Administration, while others can be administered more efficiently if all required information and documentation are promptly provided. The length of probate depends on many factors, including creditor claims, tax issues, real estate, and whether disputes arise.
Can I access my loved one's bank account after they die?
Generally, no. Unless you are a joint owner with survivorship rights or otherwise authorized by law, you should not withdraw funds from the deceased person's bank account. Once a probate estate is opened, the Personal Representative is generally responsible for collecting and managing estate assets.
Can I drive the deceased person's vehicle?
It depends. Until ownership is legally transferred, family members should be cautious about using the decedent's vehicle. Insurance coverage, title issues, and liability concerns should all be considered before the vehicle is driven or transferred.
What should I do immediately after a loved one dies?
Although every situation is different, it is generally advisable to:
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Obtain certified copies of the Death Certificate.
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Locate the original Will and any Trust documents.
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Secure the decedent's home and valuable property.
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Gather financial records and account information.
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Avoid distributing property before consulting with an attorney.
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Schedule a consultation to determine whether probate is necessary.
Taking these steps early can help avoid unnecessary complications during estate administration.
How much does probate cost?
The cost of probate varies depending on the size and complexity of the estate. Expenses may include court filing fees, attorney's fees, Personal Representative compensation, publication costs, appraisals, accounting fees, and other administrative expenses. During your consultation, we can discuss the anticipated costs for your specific situation.
What if I don't know whether probate is necessary?
Many families are unsure whether probate is required. The answer depends on how the decedent's assets were owned, whether beneficiary designations exist, and whether a Trust or other estate planning tools were used. A probate attorney can review the estate and determine whether probate is necessary and, if so, what type of probate proceeding is appropriate.
How do I schedule a consultation?
If you have questions about Florida probate, estate administration, or your rights as a Personal Representative, beneficiary, or heir, we invite you to contact Kaney Law to schedule a consultation. We can evaluate your situation, explain your options, and guide you through the probate process with clarity and confidence.
ATTORNEY'S FEE
In Florida, hiring a probate lawyer typically costs between $1,500 and $5,000 for standard flat-fee probates, or between 1% and 3% of the gross estate value if the attorney uses the state's statutory fee guidelines. The actual amount you pay depends largely on the size of the estate, whether it qualifies for simplified administration, and how the attorney chooses to bill.
Still Have Questions?
Every estate is unique. We're here to help you understand your options and guide you through every step of the process.