No. In Florida, having a will does not let your family skip probate — it’s closer to the opposite. A will is written for the probate court, and nearly every will in Florida goes through some form of probate so a judge can authorize the transfer of assets titled solely in the deceased person’s name. What varies is which track the estate takes. Small or older estates can move through a streamlined process that wraps up in weeks, while larger estates go through formal administration that typically runs six to twelve months. And a significant amount of wealth can pass entirely outside the will and outside probate, based on how the assets were titled during life.
Why a Will Requires Probate
A will is not a substitute for the court process. It’s the set of instructions the court follows. It names a personal representative (Florida’s term for an executor) and specifies who receives what. Without probate, a will has no legal force behind it.
Once the court admits the will and appoints the personal representative, that person has a legal duty to settle the estate according to the will’s terms and in the best interests of everyone involved, including creditors.1The Florida Statutes. Florida Code 733.602 – General Duties The will only controls assets that were in the decedent’s name alone. For each asset, ask a simple question: can someone else claim ownership automatically at death, through a beneficiary designation or joint ownership? If the answer is no, that asset needs probate.
Whoever has physical custody of the original will must deposit it with the clerk of the circuit court within 10 days of learning of the death.2Florida Senate. Florida Code 732.901 – Production of Wills Holding onto a will is not just bad practice; it violates Florida law.
Assets That Skip Probate Regardless of the Will
A surprising amount of wealth passes outside probate entirely, no matter what a will says. These assets transfer based on their legal titling or beneficiary designations, and those designations override conflicting instructions in a will. If your will leaves everything to your sister but your retirement account names your ex-spouse as beneficiary, your ex-spouse gets the retirement account.
Revocable Living Trusts
Assets transferred into a revocable living trust during life are owned by the trust, not the individual. When the person who created the trust dies, the successor trustee distributes the assets according to the trust agreement, with no court involvement. The trust also stays private, unlike probate filings, which become public record.
Jointly Owned Property
Property held as joint tenants with rights of survivorship passes automatically to the surviving owner. For married couples, tenancy by the entireties works similarly: when one spouse dies, the survivor becomes the sole owner by operation of law. Tenancy by the entireties also shields the property from the individual debts of either spouse during their lifetimes.3The Florida Bar. Turning Straw Into Gold – A Comprehensive Guide to Tenants by the Entirety in Florida
Beneficiary Designations and POD/TOD Accounts
Life insurance policies, annuities, IRAs, and 401(k) accounts pay out directly to the named beneficiary. Florida also allows payable-on-death designations on bank accounts and transfer-on-death registrations on brokerage accounts. The beneficiary has no access while the owner is alive, but the funds transfer directly at death. Setting one up takes about five minutes at most banks. Keeping these designations current after divorce, remarriage, or the death of a named beneficiary is critical, because the paperwork on file with the financial institution controls, not the will.
Enhanced Life Estate (Lady Bird) Deeds
Florida recognizes an enhanced life estate deed, commonly called a Lady Bird deed, which lets a property owner name a beneficiary to automatically inherit the real estate at death. The owner keeps full control during life, including the right to sell, mortgage, or lease without the beneficiary’s permission. After the owner dies, the beneficiary files a death certificate with the county clerk and the property transfers without probate.
Florida’s Streamlined Probate Options
Even when an estate contains assets that require court involvement, formal administration isn’t always necessary. Florida offers two shorter paths.
Summary Administration
Summary administration is the more commonly used shortcut. It’s available if the total value of probate assets (after subtracting property exempt from creditor claims) is $75,000 or less, or if the decedent has been dead for more than two years.4Florida Senate. Florida Code 735.201 – Summary Administration Nature of Proceedings No personal representative is appointed. The court enters an order distributing assets directly to the beneficiaries named in the petition.
The two-year rule is worth flagging. After two years from death, nearly all creditor claims are barred, which is what makes summary administration available for larger estates once that window closes.
Summary administration is faster than formal probate, but not paperwork-free. Before the court enters its order, the petitioner must conduct a diligent search for known or reasonably ascertainable creditors, serve them with a copy of the petition, and provide for payment to the extent assets allow.5FindLaw. Florida Code 735.206 – Summary Administration Distribution Skipping that step has real consequences: an unpaid creditor who wasn’t notified can later pursue the beneficiaries who received assets, and if the creditor wins, the beneficiaries owe the creditor’s attorney fees on top of the original debt.
Disposition Without Administration
This is the simplest option, but only applies to very small estates. It’s available when the estate consists entirely of personal property that’s either exempt from creditors under Florida law or worth no more than the combined cost of funeral expenses and medical bills from the decedent’s final 60 days of illness.6Florida Senate. Florida Code 735.301 – Disposition Without Administration Real estate is not eligible. In practice, this process exists to reimburse whoever paid for the funeral and last medical bills.
The Homestead Exception That Overrides Your Will
Florida’s homestead protections come with restrictions that catch many families off guard. If the homeowner is survived by a spouse or minor children, Florida’s constitution limits who can inherit the home through a will. An owner survived by a spouse but no minor children can only devise the homestead to that spouse.7The Florida Statutes. Florida Code 732.4015 – Devise of Homestead If the owner is survived by a minor child, the homestead cannot be devised at all, even to the spouse.
When the will’s instructions violate these restrictions, the property passes by Florida’s default rules instead. The surviving spouse receives a life estate in the home, with ownership eventually passing to the decedent’s descendants. The surviving spouse can instead elect to take an undivided one-half interest as a tenant in common with the descendants.8The Florida Statutes. Florida Code 732.401 – Descent of Homestead A will that leaves the family home to an adult child while a spouse is still alive simply won’t be honored.
What Formal Probate Costs and How Long It Takes
When an estate goes through formal administration, expect six to twelve months for an uncontested case. The biggest driver of that timeline is the creditor claims period. After the personal representative is appointed, they publish a Notice to Creditors, and creditors have three months from first publication to file claims. Known creditors served with direct notice have 30 days from service, or the three-month window, whichever is later. Miss the deadline and the claim is permanently barred.9The Florida Statutes. Florida Code 733.2121 – Notice to Creditors The estate generally cannot close until this window expires and all valid claims are resolved.
Florida law also sets presumptively reasonable fees for both the personal representative and the probate attorney, calculated on a sliding scale based on the value of the estate. On a $500,000 estate, the personal representative’s commission is 3% of the first $1 million, which comes to $15,000.10FindLaw. Florida Code 733.617 – Compensation of Personal Representative Attorney fees for the same estate run $1,500 for the first $40,000, plus $750 for the next $30,000, plus $750 for the next $30,000, plus 3% of everything from $100,000 to $1 million — another $15,000.11Florida Senate. Florida Code 733.6171 – Compensation of Attorney for the Personal Representative Combined, fees alone consume roughly $30,000 of that $500,000 estate before any extraordinary charges for things like selling real property or handling litigation. These amounts are “presumed reasonable,” meaning the court will approve them without further scrutiny, though parties can negotiate lower fees or challenge fees they believe are excessive.
One thing Florida families don’t pay is state estate tax. Florida’s estate tax ended when the federal credit it was tied to was eliminated after December 31, 2004, and no Florida estate tax has been due since January 1, 2005.12Florida Dept. of Revenue. Estate Tax
Making Probate Easier on Your Family
A few choices at the drafting stage can save your heirs weeks of delay and reduce the risk that your instructions won’t be followed.
Include a self-proving affidavit. A standard Florida will requires two witnesses, and if a dispute arises about whether the will was properly signed, the court may need to track down those witnesses. A self-proving affidavit, notarized at the time of signing, has the testator and both witnesses swear under oath that the will was properly executed. The will can then be admitted to probate without any further proof.13The Florida Statutes. Florida Code 732.503 – Self-Proof of Will
Name a personal representative who actually qualifies. Florida is stricter than many states. The person must be an adult, mentally and physically capable, and free of any felony conviction or conviction for elder abuse, neglect, or exploitation.14Florida Senate. Florida Code 733.302 – Who May Be Appointed Personal Representative15The Florida Statutes. Florida Code 733.303 – Persons Not Qualified Out-of-state residents face a bigger hurdle: a non-Florida resident can only serve if they are a spouse, sibling, parent, child, aunt, uncle, niece, nephew, or someone related by direct lineage to any of those people. The spouse of someone who qualifies under those rules also qualifies.16The Florida Statutes. Florida Code 733.304 – Nonresidents Naming an out-of-state friend or business partner is a common mistake that forces the court to appoint someone else.
Review your beneficiary designations after any major life event. Divorce, remarriage, births, and deaths in the family can leave old designations pointing in the wrong direction. The paperwork on file with the bank or insurance company controls what happens to that account, and your will can’t override it.