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Understanding Probate in Florida

Probate is one of the least understood areas of the law for most people. Many individuals are surprised to learn they have been named as a personal representative in a parent’s, relative’s, or friend’s will without having any real idea what that role involves. Because of this uncertainty, probate often develops a negative reputation, and people frequently try to avoid it without fully understanding its purpose or function. This overview is intended to clarify what probate actually is, how it works in Florida, and why it is required in many situations.

At its core, probate is the legal process used to confirm the validity of a person’s will after death. While the word “probate” is commonly used to describe everything that happens after someone dies, the broader process is more accurately called estate administration. Estate administration includes gathering the decedent’s assets, paying debts and taxes, and distributing the remaining property to heirs or beneficiaries.

In Florida, estate administration generally occurs through one of two procedures: formal administration or summary administration. Summary administration is a streamlined option available for smaller estates—specifically, when the probate assets are valued at $75,000 or less, or when the decedent has been deceased for more than two years.

Testate vs. Intestate Estates

An estate may be either testate or intestate.

A testate estate is one in which the decedent left a valid will. The will serves as a roadmap for the court by naming beneficiaries and selecting a personal representative to manage the estate.

An intestate estate exists when there is no will. In those cases, Florida law dictates who inherits the assets and in what proportions.

Assets Subject to Probate

Not all assets are subject to probate. Only property owned solely in the decedent’s name, without a built-in mechanism for transfer at death, must go through probate administration.

Assets that pass automatically—such as life insurance proceeds with a named beneficiary, retirement accounts, payable-on-death bank accounts, or property owned jointly with rights of survivorship—typically transfer directly to the beneficiary or surviving owner and are excluded from the probate estate.

The Formal Probate Process

Formal probate administration begins with the filing of a petition with the court. This petition identifies the decedent, outlines the estimated value and nature of the estate, lists beneficiaries, and requests the appointment of a personal representative. If there is a will, the petition also asks the court to formally recognize it.

Interested parties, as defined under Florida law, must receive notice of the proceeding. Once the court approves the petition and resolves any objections, it issues letters of administration, which authorize the personal representative to act on behalf of the estate.

After appointment, the personal representative must notify creditors that the estate is being administered. This includes publishing a notice in a local newspaper for two consecutive weeks and directly notifying known creditors. Creditors generally have three months from the first publication date to file claims against the estate. Claims that are not timely filed are usually barred.

Duties of the Personal Representative

The personal representative is responsible for:

Locating and safeguarding estate assets

Resolving creditor claims

Filing required tax returns

Paying estate expenses

Distributing assets according to the will or Florida law

The personal representative must also provide reports to the court and formally close the estate. Depending on the size and complexity of the estate, this process may take several months or, in more complicated cases, several years.

Probate Costs and Compensation

Florida law permits compensation for the personal representative, attorneys, and other professionals involved in the probate process.

Personal representative fees are calculated as a percentage of the estate’s value, with three percent commonly considered reasonable for estates under one million dollars. Attorneys’ fees are also often based on a similar percentage structure, unless otherwise agreed.

Why Many People Try to Avoid Probate

Given these realities, many people seek ways to minimize or avoid probate altogether. The most common reasons include:

Time – Formal probate administration in Florida often lasts eight months to a year, and sometimes longer.

Public exposure – Probate is a court process, and many estate documents become part of the public record, allowing anyone to review details about assets, debts, and beneficiaries.

Cost – Probate expenses frequently range from four to eight percent of the estate’s value. For a moderately sized estate, that can amount to tens of thousands of dollars that otherwise could have passed directly to loved ones.

Understanding how probate works is the first step in deciding whether planning strategies—such as trusts or beneficiary designations—may be appropriate to reduce its impact or avoid it altogether.