Florida Probate: How It Works and How Long It Takes

Probate is the court process that transfers a Florida resident's property after death when it was not already set up to pass directly. Small estates (under $75,000, not counting exempt property) or estates of someone who died more than 2 years ago can use summary administration, which often takes weeks; other estates go through formal administration, which cannot close until the 3-month creditor period has run and usually takes 6 to 12 months. The law also sets a presumed reasonable fee for the personal representative and the estate's lawyer, so you can estimate the cost before you start. This guide covers every step, the costs with a worked example, who inherits without a will, and the homestead rules that make Florida different.

This guide is general information, not legal advice. Every estate is different; speak to a Florida probate lawyer before you act as a personal representative.

The short version

Not everything goes through probate: accounts with a named beneficiary, jointly owned property with survivorship and assets in a living trust pass directly.
Summary administration is available when the probate estate, less exempt property, is $75,000 or less, or the person died more than 2 years ago (s. 735.201).
Creditors have 3 months from the first publication of the notice to creditors to file claims, and every claim is barred 2 years after death (ss. 733.702, 733.710).
Presumed fees: the personal representative's commission starts at 3% and the lawyer's fee follows a statutory schedule; both can be negotiated (ss. 733.617, 733.6171).
Homestead cannot be left freely by a person survived by a spouse or minor child, and passes under its own rules.
A surviving spouse may claim an elective share of 30% instead of what the will gives (s. 732.2065).

Key facts at a glance

Question	Florida answer	Source
Small-estate procedure	Summary administration: estate up to $75,000 (excluding exempt property) or death more than 2 years ago	s. 735.201
No probate at all	Only exempt property plus assets no larger than funeral costs and medical bills of the last 60 days	s. 735.301
Notice to creditors	Published once a week for 2 consecutive weeks	s. 733.2121
Creditor claim deadline	3 months after first publication (or 30 days after service on a known creditor, if later)	s. 733.702
Absolute bar on claims	2 years after death	s. 733.710
Challenge to the will	3 months after being served with the notice of administration	s. 733.212
Personal representative's commission	3% of the first $1 million, then lower rates	s. 733.617
Spouse's elective share	30% of the elective estate	s. 732.2065
Valid will	Signed at the end, with 2 witnesses present	s. 732.502

Does every estate have to go through probate?

No. Probate is needed only for assets that were in the deceased person's sole name with no beneficiary or co-owner who takes them automatically.

Usually passes without probate	Usually needs probate
Bank accounts marked payable-on-death or transfer-on-death	Bank and brokerage accounts in one name with no beneficiary
Life insurance and retirement accounts with a living beneficiary	Real estate in one name (other than how homestead passes)
Property owned jointly with right of survivorship, or by spouses as tenants by the entireties	Vehicles, businesses and other assets in one name
Assets held in a living trust	Claims the deceased person had, such as an injury lawsuit

If the only assets are exempt property and an amount no larger than the funeral and the last 60 days of medical bills, the court can release them by letter without any administration (s. 735.301).

What is the difference between summary and formal administration?

Summary administration is a short court order distributing the assets without appointing a personal representative; formal administration appoints a personal representative who collects assets, pays debts and distributes what remains.

	Summary administration	Formal administration
When available	Estate up to $75,000 (less exempt property) or death more than 2 years ago	Any estate
Personal representative	None	Appointed by the court and issued letters of administration
Creditors	Known creditors must be paid or provided for; a notice to creditors may be published	Notice to creditors published; 3-month claim period
Typical length	A few weeks to a few months	6 to 12 months, longer with disputes or a sale

What are the steps in formal probate?

File the original will with the clerk of the circuit court in the county where the person lived; anyone holding the original must deposit it within 10 days of learning of the death (s. 732.901).
Petition for administration, asking the court to admit the will and appoint the personal representative named in it.
Letters of administration are issued, giving the personal representative authority to act for the estate.
Serve the notice of administration on the beneficiaries and the surviving spouse; they have 3 months from service to challenge the will or the personal representative's qualifications (s. 733.212).
Publish the notice to creditors once a week for 2 consecutive weeks and serve it on known creditors.
Inventory the assets, collect them, and pay valid claims, expenses and taxes.
Distribute the remaining assets, file a final accounting and petition for discharge.

How much does probate cost in Florida?

Court filing fees are modest; the main costs are the personal representative's commission and the lawyer's fee, which Florida law presumes reasonable on a fixed schedule unless they are agreed otherwise.

Estate value	Personal representative (s. 733.617)	Lawyer, ordinary services (s. 733.6171)
Up to $40,000	3%	$1,500
$40,000 to $70,000	3%	plus $750
$70,000 to $100,000	3%	plus $750
Next $900,000 (to $1 million)	3%	3%
$1 million to $3 million	2.5%	2.5%
$3 million to $5 million	2.5%	2%
$5 million to $10 million	2%	1.5%
Above $10 million	1.5%	1%

Example: for a probate estate worth $500,000, the presumed lawyer's fee is $1,500 + $750 + $750 + 3% of $400,000 ($12,000) = $15,000, and the personal representative's commission is 3% of $500,000 = $15,000. A family member serving as personal representative can waive the commission.

The fee is negotiable. A lawyer who wants to charge on this schedule must first tell the personal representative in writing that there is no mandatory statutory fee, that the fee can be negotiated, and that the personal representative does not have to hire the lawyer who wrote the will (s. 733.6171(2)). Extra work, such as selling a house or litigation, can be billed on top.

Who inherits if there is no will?

Florida's intestacy law gives everything to the surviving spouse if all the children are children of both spouses; otherwise the spouse takes half and the descendants share the other half.

Family at death	Who inherits
Spouse, no descendants	Spouse takes everything
Spouse and descendants who are all the spouse's too, and the spouse has no other descendants	Spouse takes everything
Spouse, and the deceased had descendants from another relationship	Spouse half; descendants half
Spouse, and the spouse has descendants from another relationship	Spouse half; descendants half
No spouse	Descendants; if none, parents; then brothers and sisters; then more distant relatives

Sources: ss. 732.102 and 732.103. Homestead follows its own rule, below.

What happens to the family home?

A Florida homestead cannot be left by will away from a surviving spouse or a minor child; if the owner leaves a spouse and descendants, the spouse receives a life estate and the descendants the remainder, unless the spouse elects instead to take a one-half share within 6 months of the death (s. 732.401). Homestead is also generally protected from the deceased person's creditors under the Florida Constitution. A court order determining the property's homestead status is usually needed before it can be sold or refinanced.

Can a spouse be disinherited?

Not completely: a surviving spouse can claim an elective share of 30% of the "elective estate", which includes many assets outside probate, unless the right was waived in a valid prenuptial or postnuptial agreement. The elective estate is broader than the probate estate, so it can reach accounts and trusts that pass to others.

Who can be the personal representative?

Any Florida resident who is at least 18 and qualified, or a non-resident only if closely related to the deceased (s. 733.304). Non-residents who qualify include a child, parent, spouse, sibling, aunt, uncle, niece or nephew, or a lineal relative of any of them. A non-resident friend cannot serve, even if named in the will, which is a common surprise for families who live out of state.

How do I choose a probate lawyer?

Ask how the fee will be calculated, whether it follows the statutory schedule or an hourly rate, and who will do the work. The Florida Bar certifies lawyers in wills, trusts and estates law after peer review and an exam. Compare estate planning lawyers in our rankings for Miami, Coral Gables, Fort Lauderdale, Orlando and Tampa, or elder law lawyers in Orlando and Jacksonville. Before you hire, see the questions to ask a lawyer.

Checklist for a family after a death

Order several certified copies of the death certificate.
Find the original will and deposit it with the clerk within 10 days.
List every account, policy and property, and note which have a named beneficiary or co-owner.
Secure the home and vehicles; keep paying insurance.
Do not pay the deceased person's debts from your own money, and do not distribute assets before the creditor period ends.
Check whether the estate qualifies for summary administration.
Note the deadlines: homestead election within 6 months, and the 2-year bar on creditor claims.

Frequently asked questions

How long does probate take in Florida?

Summary administration often takes a few weeks to a few months. Formal administration cannot close before the 3-month creditor period ends and usually takes 6 to 12 months, longer if a house must be sold or someone contests the will.

Is a handwritten will valid in Florida?

Only if it is signed at the end and witnessed by two people as section 732.502 requires. Florida does not accept unwitnessed handwritten wills.

What is a self-proved will?

A will that the testator and both witnesses also acknowledged before a notary (s. 732.503). It can be admitted to probate without finding the witnesses later.

Do heirs have to pay the deceased person's debts?

No. Debts are paid from the estate's assets. Heirs are not personally liable for them unless they co-signed or the debt is otherwise their own.

Can I avoid probate in Florida?

Largely, yes: name beneficiaries on accounts and policies, hold property jointly with survivorship where appropriate, or use a revocable living trust. Ask an estate planning lawyer which fits your family.

Is there a Florida inheritance or estate tax?

Florida has no state inheritance tax and no state estate tax. A federal estate tax can apply to very large estates.