The Non-Citizen Spouse Problem: The Marital Deduction and QDOTs

One of the most common — and most expensive — surprises for international couples involves the federal estate tax marital deduction. When a U.S. citizen dies and leaves assets to a U.S. citizen spouse, the unlimited marital deduction generally allows those assets to pass with no federal estate tax at the first death. But that unlimited deduction is not available when the surviving spouse is not a U.S. citizen. Congress was concerned that a non-citizen spouse could inherit a large estate and then leave the country beyond the reach of U.S. tax.

The standard solution is a Qualified Domestic Trust, or QDOT, authorized under federal law. Property passing into a properly drafted QDOT can qualify for the marital deduction, deferring estate tax until the surviving spouse draws on the principal or dies. A QDOT carries strict requirements — including at least one U.S. trustee and, for larger trusts, a U.S. bank as trustee or a bond. If your spouse is a lawful permanent resident or visa holder rather than a citizen, this single issue can justify the entire planning engagement.

Estate Tax Exposure for Non-Resident Aliens

If you are a non-resident alien — you own Florida real estate but are not domiciled in the United States — your federal estate tax exposure works very differently from a citizen’s. Non-resident aliens are taxed on U.S.-situs assets, and U.S. real property is squarely included. Critically, the estate tax exemption available to non-resident aliens is dramatically smaller than the exemption available to citizens and domiciliaries. That Miami condo you bought as an investment could generate a meaningful estate tax bill that your heirs do not expect. Ownership structures, treaty provisions, and lifetime planning can mitigate this, but only if addressed before death.

Florida Homestead, Wills, and Trusts Still Apply

Immigration status does not exempt you from Florida law. Florida’s constitutional homestead protections, including restrictions on how a homestead can be devised when there is a surviving spouse or minor child, apply regardless of citizenship. A valid Florida will must meet the execution formalities of Florida Statutes §732.502 — signed at the end by the testator and witnessed by two people in each other’s presence. Revocable and irrevocable trusts are governed by Chapter 736, the Florida Trust Code, and a funded revocable trust remains one of the best tools for avoiding Florida probate on local real estate — particularly valuable when your family lives overseas and cannot easily travel to a Florida courthouse.

Guardianship for Children of Immigrant Families

If you have minor children, your estate plan should name a guardian. For immigrant families this requires extra thought: the person you trust most may live abroad, and a guardianship of a child located in Florida raises practical questions about relocation, schooling, and the child’s own immigration status. Naming a thoughtful guardian — and a backup inside the United States — prevents a court from making that decision for you.

Powers of Attorney When You Travel for Visa Matters

Clients pursuing immigration benefits often spend weeks abroad for consular interviews, biometrics, or family matters. A durable power of attorney and a designation of health care surrogate ensure someone can manage your Florida property, sign closing documents, or handle a medical emergency while you are out of the country. We coordinate these documents with your travel and your USCIS case strategy so nothing in your Florida affairs stalls while your immigration matter is pending.

Coordinate Your Estate Plan With Your Immigration Case

Your estate plan and your immigration case are not separate worlds. A pending green-card application, a naturalization timeline, or a spouse’s path through marriage-based green cards can all change which planning tools make sense — sometimes it is worth waiting until citizenship is final, and sometimes a QDOT should be in place now. Because our firm focuses on estate planning and probate and does not handle immigration matters, we routinely coordinate with Fitenko Law, a Florida immigration firm we recommend for the immigration side, so both halves of your plan move in step.

Newcomers Need Both

If you are new to South Florida, do not assume an estate plan can wait until your immigration status settles. The two should be built together. The right structure protects your home, your spouse, and your children — and avoids a tax or probate surprise that lands on your family at the worst possible time. Speak with a Florida estate planning attorney, and pair that conversation with qualified immigration counsel.

That is the short version. The longer version matters, especially in South Florida, where blended families, out-of-state heirs, and contested wills make probate less routine than the textbooks suggest. Below is how the process actually unfolds, what trips people up, and where the real decisions get made.

What “opening” a probate estate actually means

Opening an estate is not the whole probate. It is the first act — the moment the court takes jurisdiction over the decedent’s property and recognizes someone as having authority to act. Until letters of administration are issued, no one can lawfully sell the house, close the bank account, or pay the funeral home from estate funds. People often assume that naming an executor in a will is enough. It is not. A will is a nomination, not an appointment. The court has to make the appointment official.

Florida probate is governed by Chapter 733 of the Florida Statutes and the Florida Probate Rules. Two procedural roads exist, and choosing the right one is the first real decision.

Formal administration vs. summary administration

• Formal administration is the standard process. It applies to most estates, requires a Florida-licensed attorney under Probate Rule 5.030, and results in a personal representative with full powers. Use this when the estate is larger, has creditors to manage, owns real property that must be sold, or has any whiff of a dispute among the heirs.
• Summary administration is the shortcut. Under Florida Statutes section 735.201, it is available when the value of the probate estate (excluding exempt property like the homestead) is $75,000 or less, or when the decedent has been dead for more than two years. It is faster and cheaper, but it produces no personal representative — which makes it awkward when assets need to be actively managed.

There is also a third path that avoids opening an estate at all: disposition of personal property without administration, for very small estates where assets barely exceed final expenses. It is narrow, and most families will not qualify.

Step 1: Confirm Florida is the right place to file

Venue matters. You open the estate in the county of the decedent’s domicile — their true, fixed, permanent home — at the time of death. For a Boca Raton retiree, that is Palm Beach County. For a Miami resident, Miami-Dade. If the person split time between, say, New York and Florida, domicile can be genuinely contested, and the answer drives everything from tax treatment to which court hears the case.

Snowbirds complicate this constantly. If a New York probate is also in play because the decedent held assets up north, the procedures there differ — New York routes estates through Surrogate’s Court, and the steps to are not identical to Florida’s. When both states have a claim, you may face a primary administration in the domicile state and an ancillary administration in the other. Sorting that out early saves months.

Step 2: Locate and deposit the original will

Florida law requires that the original will be deposited with the clerk of the circuit court within 10 days of learning of the death (Florida Statutes section 732.901). This is one of the most overlooked deadlines, and it is not optional. The custodian of the will — usually whoever has physical possession of it — bears that duty, whether or not they are the named executor.

A few practical points:

• Photocopies are presumed revoked under Florida law. If only a copy survives, you can still try to probate it, but you carry a heavier burden of proof — exactly the scenario that invites a will contest.
• Self-proving affidavits (the notarized page many Florida wills include) let the court accept the will without tracking down witnesses. Without one, the witnesses may have to testify.
• If there is no will, the estate is “intestate,” and Florida’s intestacy statute (Chapter 732) decides who inherits — not the family’s expectations.

Step 3: Identify and qualify the personal representative

The person who runs a Florida estate is called the personal representative (Florida’s term for what other states call an executor or administrator). Florida is strict about who qualifies. Under section 733.304, a non-resident can only serve if they are closely related to the decedent — a spouse, child, parent, sibling, or certain other relatives. A close friend who lives in Georgia, however well-intentioned, cannot serve. A person who is under 18, mentally or physically unable to perform the duties, or who has been convicted of a felony is also disqualified.

When there is no will, section 733.301 sets the order of priority: the surviving spouse first, then the person selected by a majority of the heirs, then the heir nearest in degree. This priority list is a frequent flashpoint in families that do not get along. If two adult children each want control, the court has to break the tie, and that is where a dispute can harden into litigation.

Step 4: File the petition for administration

This is the formal “opening.” The petition for administration — governed by Probate Rule 5.200 — is filed with the clerk, along with the deposited will, the death certificate, and a filing fee that runs roughly $230 to $400 depending on the county. The petition states the decedent’s domicile, identifies the beneficiaries and heirs, describes the nature and approximate value of the estate, and asks the court to appoint the proposed personal representative.

Alongside it, the proposed personal representative typically files:

1. An oath of personal representative, swearing to faithfully administer the estate.
2. A designation of resident agent and acceptance, naming someone in Florida to receive service of court papers.
3. An application for a bond, if the will does not waive bond or the court requires one.

If everything is in order and no one objects, the judge signs an order admitting the will to probate and appointing the personal representative. The clerk then issues letters of administration. That document — not the will, not the death certificate — is what banks, title companies, and brokerages will demand before they release anything.

Step 5: After the estate is open

Opening the estate starts the clock on a sequence of duties. Within the first stretch of administration, the personal representative must serve a notice of administration on interested persons, which triggers a 3-month window to object to the will’s validity, the venue, or the appointment. The representative also publishes a notice to creditors and serves known creditors directly; creditors then have a limited period — generally 3 months from first publication, or 30 days from being served — to file claims against the estate.

Other early tasks include filing an inventory of assets within 60 days, securing the homestead, and obtaining a tax identification number for the estate. None of this can happen before the estate is opened, which is exactly why getting Step 4 right is so important. For a fuller picture of what comes next, our overview of the Florida probate process walks through administration end to end, and families weighing whether a will is even valid should review our guidance on Florida wills and will contests.

Common mistakes that delay opening an estate

After years of handling South Florida estates, the same avoidable errors recur:

• Waiting too long. Memories fade, witnesses move, and the 10-day will-deposit duty gets missed. Delay also lets disputes fester.
• Filing in the wrong county. Using the address on the driver’s license instead of the actual domicile, or filing where the property sits rather than where the person lived.
• Choosing summary administration to save money — and then needing a personal representative anyway to sell real estate or pursue a claim. You cannot easily convert after the fact.
• Picking a disqualified personal representative, usually an out-of-state non-relative, then having to start over with a new nominee.
• Ignoring early signs of a contest. If one heir is already hinting that the will was signed “under pressure,” the way you open the estate — and how carefully you document everything — can shape whether that hint becomes a lawsuit.

When opening a probate estate becomes a contested matter

Most estates open quietly. Some do not. In contested situations, the petition stage becomes the battlefield: competing petitions for who should be appointed, objections to the will, allegations of undue influence or lack of capacity, or fights over domicile. Once a caveat is filed by an interested party, the clerk cannot admit the will without notice to that person — which means a determined objector can stall the appointment.

This is the moment families regret going it alone. Florida recognizes and procedural paths much as other states do, and a contested administration follows a very different track than an uncontested one. Choosing the wrong path early, or appointing the wrong representative, can entrench a dispute that a cleaner opening might have prevented. Our firm’s focuses on exactly these contested openings — getting the right person appointed quickly and on solid footing.

If you are facing a will dispute or are unsure which type of administration fits your situation, it is worth a conversation before you file rather than after. You can reach our South Florida probate team through our contact page.

Frequently Asked Questions

Where do I file to open a probate estate in Florida?

You file a petition for administration with the clerk of the circuit court in the Florida county where the decedent was domiciled — their permanent home — at the time of death. For example, a Boca Raton resident’s estate opens in Palm Beach County, and a Miami resident’s in Miami-Dade. If the person split time with another state, domicile can be contested and may require both a primary and an ancillary administration.

How long do I have to file the will after someone dies in Florida?

Under Florida Statutes section 732.901, the custodian of the original will must deposit it with the clerk of the circuit court within 10 days of learning of the death. This duty applies whether or not the custodian is the named executor, and it is separate from filing the petition to open the estate.

Do I need a lawyer to open a probate estate in Florida?

For formal administration, yes. Florida Probate Rule 5.030 requires the personal representative to be represented by a Florida-licensed attorney unless the representative is the sole interested person. Summary administration and disposition without administration have narrower exceptions, but most estates with creditors, real property, or any dispute proceed through formal administration with counsel.

What is the difference between summary and formal administration?

Summary administration (Florida Statutes section 735.201) is a faster, cheaper process available when the non-exempt estate is worth $75,000 or less, or when the decedent has been dead more than two years — but it appoints no personal representative. Formal administration is the standard process, results in a personal representative with full powers to collect assets and pay creditors, and is required for larger or contested estates.

Who can serve as personal representative of a Florida estate?

A Florida resident who is at least 18, mentally and physically capable, and not a convicted felon can serve. A non-resident may serve only if closely related to the decedent — such as a spouse, child, parent, or sibling — under Florida Statutes section 733.304. When there is no will, section 733.301 gives priority first to the surviving spouse, then to the person chosen by a majority of the heirs.

I have sat across the table from families in Miami-Dade, Broward, and Palm Beach who never imagined they would end up suing a sibling. Most of them are not greedy. They are grieving, suspicious, and convinced something went wrong. Sometimes they are right. This guide explains, in plain terms, how heir disputes and estate litigation actually work in Florida, what the deadlines are, and where these fights tend to begin.

Why Disputes Among Heirs Arise in Florida Estates

Florida is fertile ground for inheritance disputes for reasons that have little to do with bad character. The state’s large population of retirees means many estates involve second and third marriages, blended families, and adult children who have not lived near their parents in years. Add significant real estate values, a steady stream of out-of-state heirs, and the occasional last-minute change to an estate plan, and conflict becomes almost predictable.

The most common flashpoints I see include:

• A surprise change to a will or trust made shortly before death, often favoring one child, a new spouse, or a caregiver.
• A personal representative who stops communicating or appears to be favoring themselves.
• Jointly titled accounts or beneficiary designations that quietly move assets outside the will entirely.
• Allegations that someone influenced the decedent when they were frail, medicated, or cognitively declining.
• Disagreements over the value or sale of property, especially the family home or a closely held business.

Understanding why these conflicts surface is the first step. Many of the friction points families encounter mirror the broader , which span jurisdictions and recur whether an estate is in Florida or New York.

Will Contests: Grounds Recognized Under Florida Law

A will contest is a specific kind of estate litigation in which an interested person asks the court to refuse to admit a will to probate, or to revoke probate already granted. You cannot contest a will simply because you are unhappy with it or believe it is unfair. Florida courts require a legally recognized ground. The most frequently litigated are below.

Lack of Testamentary Capacity

To make a valid will in Florida, the testator must understand, in a general way, the nature and extent of their property, the natural objects of their bounty (typically family members), and the practical effect of signing the document. The standard is not high, and a person can have a valid will even with a dementia diagnosis, provided they had a lucid interval when they signed. Capacity is judged at the moment of execution, which is why medical records, the drafting attorney’s notes, and witness testimony matter so much.

Undue Influence

This is the workhorse claim in Florida heir disputes. Undue influence means the testator’s free will was overpowered by someone in a position to do so. Under Florida law, a presumption of undue influence can arise when a person who is a substantial beneficiary occupied a confidential relationship with the decedent and was active in procuring the will or trust. The Florida Supreme Court’s decision in In re Estate of Carpenter set out factors courts weigh, such as whether the influencer was present at the signing, recommended the attorney, or kept the will afterward. Once that presumption arises, the burden shifts, and the beneficiary must come forward with a reasonable explanation.

Improper Execution

Section 732.502 of the Florida Statutes requires that a will be signed by the testator at the end and witnessed by two competent witnesses, each of whom signs in the presence of the testator and of each other. Florida does not recognize handwritten (holographic) wills that lack proper witnessing, even if valid in another state. A surprising number of contests turn simply on whether the formalities were followed.

Fraud, Duress, and Mistake

Less common but still viable, these grounds cover situations where the testator was deceived about what they were signing, coerced through threats, or mistaken about a material fact. The mechanics of proving these claims share much with how a , though Florida applies its own statutes, presumptions, and deadlines.

Who Has Standing to Bring Estate Litigation

Not everyone can walk into court and challenge an estate. Florida limits these actions to interested persons, a term defined in Section 731.201(23) as anyone who may reasonably be expected to be affected by the outcome of the proceeding. In practice this means:

1. Beneficiaries named in the current will or trust.
2. Beneficiaries named in a prior will who would inherit if the current one fails.
3. Heirs who would take under Florida’s intestacy statutes if no valid will exists.
4. Creditors with a legitimate claim against the estate.

A disinherited child generally has standing because, but for the will, they would inherit. A neighbor who was promised something verbally usually does not. Establishing standing early is critical; I have seen otherwise strong cases dismissed because the person bringing them had no legal stake in the outcome.

The Deadlines That Quietly End Cases

Nothing destroys a meritorious estate dispute faster than a missed deadline, and Florida’s are short and unforgiving. Once a personal representative serves a formal Notice of Administration under Section 733.212, an interested person generally has only three months to file objections to the validity of the will, the qualifications of the personal representative, or the venue. Miss that window and the objection is forever barred, with very narrow exceptions.

Other timelines that frequently catch families off guard:

• Creditor claims: generally must be filed within three months after the first publication of the Notice to Creditors, or as otherwise limited by Section 733.702 and the two-year repose period in Section 733.710.
• Elective share: a surviving spouse must elect their roughly 30% share within the deadline set by Section 732.2135, typically the earlier of six months after service of the notice or two years after death.
• Trust contests: Florida’s six-month limitation under Section 736.0604 can begin running once a trustee sends a qualifying notice.

Because these clocks often start before grieving families even realize a problem exists, anyone who suspects something is wrong should speak with a probate litigation attorney quickly. You can review the firm’s broader to understand the full scope of administration and dispute work, and our overview of how Florida probate works walks through the standard process step by step.

Disputes Over the Personal Representative

Many heir disputes are not about the will at all. They are about the person administering the estate. The personal representative (Florida’s term for an executor) owes fiduciary duties to all beneficiaries, including duties of loyalty, impartiality, and full disclosure. When a representative self-deals, hides information, sells property below value, or pays themselves excessive fees, beneficiaries can petition the court.

Remedies available under the Florida Probate Code include compelling an accounting under Section 733.501, suspending the representative’s powers, removing them under Section 733.504 for grounds such as mismanagement or conflict of interest, and surcharging them personally for losses caused by a breach of duty. These actions can be powerful, but they require evidence, not merely frustration. Courts are reluctant to remove a representative chosen by the decedent without a clear showing of harm or misconduct.

How Florida Estate Litigation Actually Proceeds

Television gives people the wrong idea about probate fights. Most never reach a dramatic trial. A typical case moves through recognizable stages:

1. Investigation. Gathering the estate planning files, medical records, financial statements, and the drafting attorney’s notes to assess whether a claim has merit.
2. Filing. A petition to revoke probate, an objection, a petition to remove the representative, or a separate civil action depending on the dispute.
3. Discovery. Depositions, document requests, and sometimes the deposition of the drafting attorney, whose testimony often makes or breaks an undue influence claim.
4. Mediation. Florida circuit courts routinely order mediation, and the large majority of estate disputes settle here, often because litigation is expensive and the estate itself pays the cost of delay.
5. Trial. If no settlement is reached, a judge, not a jury, decides probate matters in Florida.

A practical reality worth stressing: estate litigation drains the very assets the family is fighting over. Attorney’s fees, expert witnesses, and the freezing of estate property during a dispute can consume a meaningful share of the inheritance. A good probate litigator will tell you candidly when a fight is worth having and when a negotiated resolution serves you better.

In Terrorem Clauses and the Risk of Challenging a Will

Some wills and trusts contain a “no-contest” or in terrorem clause that purports to disinherit anyone who challenges the document. Here Florida law offers important protection: under Sections 732.517 and 736.1108, such provisions are unenforceable in Florida. A beneficiary with a good-faith basis to contest a will or trust does not forfeit their inheritance merely for raising the challenge. This is a meaningful difference from some other states and removes a significant deterrent for legitimate claims.

Protecting Your Interests Before a Dispute Starts

The best estate litigation is the kind that never happens. Families that want to reduce the odds of conflict can take concrete steps: keep estate planning documents current and professionally drafted, document the decedent’s capacity at signing, avoid having a primary beneficiary arrange the lawyer or attend the meeting, and communicate intentions to family in advance so no one is blindsided. Reviewing the underlying requirements for a valid Florida will with counsel closes many of the gaps that contests later exploit.

If you already suspect a problem, act methodically. Preserve documents and text messages, avoid confronting the suspected influencer in a way that destroys evidence, and consult a probate attorney before any deadline runs. The difference between a recoverable inheritance and a barred claim is frequently measured in weeks.

Frequently Asked Questions

If you are facing a dispute over a loved one’s estate in South Florida, our probate team can evaluate your situation and explain your options. Contact our office to discuss your case.

Frequently Asked Questions

How long do I have to contest a will in Florida?

Once you are formally served with a Notice of Administration, you generally have only three months to file objections to the will’s validity, the personal representative’s qualifications, or venue. This deadline under Section 733.212 of the Florida Statutes is strict, and missing it usually bars the challenge permanently, so it is critical to act quickly.

What are valid grounds to challenge a will in Florida?

Florida recognizes lack of testamentary capacity, undue influence, improper execution of the document, and fraud, duress, or mistake. Being unhappy with the will’s terms is not enough. You must prove a legally recognized ground, and undue influence is the most commonly litigated, especially when a substantial beneficiary in a confidential relationship helped procure the will.

Can I be disinherited just for contesting a will in Florida?

No. Under Sections 732.517 and 736.1108 of the Florida Statutes, no-contest (in terrorem) clauses are unenforceable in Florida. A beneficiary with a good-faith basis to challenge a will or trust does not lose their inheritance simply for bringing the contest, which distinguishes Florida from several other states.

Can I remove a personal representative who is mishandling the estate?

Yes. Beneficiaries can petition the probate court to compel an accounting, suspend powers, or remove a personal representative under Section 733.504 for grounds such as mismanagement, conflict of interest, or breach of fiduciary duty. The court generally requires clear evidence of misconduct or harm rather than mere disagreement.

Does estate litigation always go to trial?

No. Most Florida estate disputes settle before trial, frequently at court-ordered mediation. Litigation is costly and the estate itself often bears the expense, which encourages resolution. When cases do proceed to trial, a judge in the probate division decides the matter; there is no jury in Florida probate proceedings.

That distinction decides whether a family spends six months in a Florida courtroom or settles an estate in an afternoon. It also decides where a will contest can actually reach. When relatives come to us angry about being “cut out,” the first thing we do is sort the assets into two piles — what the probate court controls and what it can’t touch. The answer surprises people on both sides of a dispute.

How Florida Decides What Counts as a Probate Asset

Probate is the court-supervised process of validating a will (if there is one), paying the decedent’s debts and taxes, and transferring what’s left to the rightful heirs. Florida’s rules live in Chapters 731 through 735 of the Florida Statutes, and the procedures are spelled out further in the Florida Probate Rules.

The trigger for probate is title. If the asset was titled solely in the decedent’s name and contained no instruction for passing on death, the probate court is the only legal mechanism to move it to someone living. A dead person can’t sign a deed or endorse a check. Probate exists to supply that signature through a court-appointed personal representative (Florida’s term for an executor or administrator).

Whether there’s a will or not, those solely owned assets still go through the same court. A will doesn’t avoid probate — it directs probate. Without one, Florida’s intestacy statutes (Chapter 732, Part I) decide who inherits, in a fixed order that often shocks blended families.

Assets That Typically Must Be Probated

The following almost always require probate in Florida when held in the decedent’s sole name with no beneficiary:

• Real estate titled only in the decedent’s name — a house, condo, or vacant lot in the decedent’s name alone. (A primary residence may qualify as protected homestead, which has its own rules — more below.)
• Bank and brokerage accounts with no payable-on-death (POD) or transfer-on-death (TOD) beneficiary and no joint owner.
• Vehicles, boats, and aircraft titled solely to the decedent (some can transfer through simplified procedures).
• Personal property of value — jewelry, art, collections, business equipment, livestock — owned individually.
• Ownership interests in a business, such as LLC membership units or corporate shares held individually with no operating-agreement transfer provision.
• Money owed to the decedent — uncollected wages, a personal-injury claim, a loan the decedent made to someone.

One quiet trap deserves a mention. A life insurance policy or retirement account that names a beneficiary skips probate — but if the named beneficiary died first and no contingent was listed, or if the estate itself is the beneficiary, that money drops back into the probate estate. We see this constantly with ex-spouses, lapsed beneficiaries, and “I’ll update it later” policies that never got updated.

What Skips Probate in Florida

A large share of a typical Floridian’s wealth passes outside probate, often without the family realizing it until they read the account statements. These are the non-probate assets.

Assets With a Surviving Co-Owner

Property held in joint tenancy with right of survivorship or, for married couples, tenancy by the entirety, passes automatically to the surviving owner the instant the other dies. The deed or account already names the next owner; no court is needed. A married couple’s jointly titled Florida home is the classic example. Be careful, though — property held as tenants in common has no survivorship feature, so the decedent’s fractional share does go through probate.

Assets With a Named Beneficiary

These contracts pay directly to whoever is named on the form, bypassing both the will and the court:

• Life insurance with a living named beneficiary.
• IRAs, 401(k)s, and other retirement accounts with a designated beneficiary.
• Annuities and certain pension survivor benefits.
• POD bank accounts and TOD brokerage accounts.
• Florida “Lady Bird” enhanced life estate deeds, which pass real estate to a named remainderman at death while letting the owner keep full control during life.

Assets Owned by a Living Trust

If the decedent created and properly funded a revocable living trust — meaning assets were actually retitled into the trust’s name — those assets are governed by the trust document and administered by the successor trustee under Florida’s Trust Code (Chapter 736), not by the probate court. The word that does the work is funded. An unfunded trust, sitting in a drawer with the house still titled to the individual, accomplishes nothing. We’ve reviewed many estates where a couple paid for a trust years ago and never moved a single asset into it, so probate happened anyway.

Florida Homestead: The Asset That Plays by Its Own Rules

Florida’s homestead is its own creature, and it confuses lawyers from other states. The Florida Constitution (Article X, Section 4) protects a primary residence from most creditors and restricts how it can be devised when the owner leaves a surviving spouse or minor child.

Constitutionally protected homestead is generally not a probate asset available to pay the decedent’s creditors, and it passes to heirs outside the normal estate. But families still usually need a court order — a Petition to Determine Homestead Status — to confirm the protection and clear title. So homestead “skips” the creditor side of probate while often still requiring a probate-court determination. If you’re disputing who gets the family home, this is where many South Florida fights begin.

Small Estates: When Florida Lets You Skip the Long Process

Even when assets are technically probate assets, Florida offers shortcuts for smaller estates under Chapter 735:

• Summary Administration — available when the value of the estate subject to administration (less property exempt from creditors) does not exceed $75,000, or when the decedent has been dead for more than two years. It’s faster and cheaper than formal administration, with no appointed personal representative running the show.
• Disposition Without Administration — a narrow option for very small estates where the only assets are exempt property or where final expenses (funeral costs and last-illness medical bills) consume what little is there.

Larger or contested estates fall under formal administration, which requires a personal representative, formal notice to creditors, and ongoing court supervision — and which is where most genuine will contests unfold.

Exempt Property and the Family’s Protected Share

Separate from non-probate assets, Florida shields certain items even inside a probate estate. Under Florida Statute 732.402, a surviving spouse or children can claim exempt property free from most creditor claims, including household furniture, furnishings, and appliances up to a net value of $20,000, two personal-use motor vehicles, and qualified tuition (529) plan funds. Florida law also grants a surviving spouse and dependents a family allowance (up to $18,000 under F.S. 732.403) and protects the spouse’s elective share — currently 30% of the elective estate — so a spouse cannot simply be disinherited by a will. These protections frequently change the math in a dispute and are often overlooked by heirs negotiating without counsel.

Why Probate vs. Non-Probate Matters in a Will Contest

Here’s the hard truth families learn too late: a will only controls probate assets. You can win a will contest outright and still recover nothing if the wealth left through beneficiary designations and joint accounts you never challenged. The bank account that named one child as POD, the house deeded jointly to a caretaker, the IRA that listed a new spouse — none of those are governed by the will, and none are fixed by overturning it.

That’s why a serious challenge looks past the will. When undue influence, fraud, or a lack of capacity is in play, the same conduct that tainted the will often tainted the beneficiary changes and the deeds signed in the same period — and those can be attacked directly, but through different legal theories. Untangling that requires reading every title and designation, not just the will. If you’re weighing a challenge, our overview of explains how these claims are built and proven. Florida’s process shares the same architecture even where the statutes differ — and Florida itself recognizes several procedural tracks, much like the available in other states.

If your matter sits in South Florida, our Florida team handles these disputes locally; you can learn more on our . To understand how a properly drafted estate plan prevents these fights in the first place, see our guide to wills and estate planning, and for a deeper walkthrough of the court process, visit our Florida probate resource.

The Practical Takeaway

Sort every asset by one question: does it carry its own instruction for transfer at death? Joint title, a named beneficiary, a funded trust — those skip probate. A solely owned account, a house in one name, an uncollected debt — those go through it. Get that map right, and you’ll know exactly what the probate court can decide, what the will can reach, and where a dispute can actually win or lose.

If you’re facing a contested estate or simply trying to understand what your family will have to probate, talk to a Florida probate attorney before assuming the will tells the whole story. Contact our South Florida office to review how each asset is titled and what your options are.

Frequently Asked Questions

Does having a will avoid probate in Florida?

No. A will does not avoid probate — it directs how the probate court distributes assets that are subject to probate. Any asset titled solely in the decedent’s name with no beneficiary still goes through the Florida probate court, whether or not there is a will. To skip probate entirely, assets must pass through joint ownership with survivorship, a named beneficiary (POD/TOD, life insurance, retirement accounts), or a properly funded living trust.

Do bank accounts have to go through probate in Florida?

It depends on titling. A bank account held jointly with right of survivorship passes automatically to the surviving owner, and an account with a payable-on-death (POD) beneficiary pays directly to that person — both skip probate. An account in the decedent’s sole name with no joint owner and no POD beneficiary is a probate asset and must be administered through the court.

Is a Florida house considered a probate asset?

A home titled solely in the decedent’s name is generally a probate asset, though if it qualifies as constitutionally protected homestead it passes to heirs outside the reach of most creditors and may require a Petition to Determine Homestead Status. A home held jointly with right of survivorship, as tenancy by the entirety between spouses, or transferred by a Lady Bird (enhanced life estate) deed passes outside probate.

What is the dollar limit for summary administration in Florida?

Under Chapter 735 of the Florida Statutes, summary administration is available when the value of the estate subject to administration — less property exempt from creditor claims — does not exceed $75,000, or when the decedent has been dead for more than two years. It is a faster, less expensive alternative to formal administration.

Can a will contest recover assets that passed outside probate?

Not directly. A will only controls probate assets, so overturning a will does not affect funds that passed by beneficiary designation, joint account, or funded trust. However, if undue influence, fraud, or lack of capacity tainted those beneficiary changes or deeds during the same period, they can often be challenged separately under different legal theories. This is why a thorough dispute reviews every title and designation, not just the will.

That distinction sounds technical, but it shapes everything that follows: how long the estate takes to settle, how much it costs, who has authority to act, and how exposed the family is to creditor claims and to other heirs who may contest the will. Choosing the wrong path can stall a sale, reopen old disputes, or leave a beneficiary personally on the hook. Below is how I walk South Florida families through the decision.

The Core Difference: Who Runs the Estate

The single most important practical difference is whether anyone gets formal legal authority to act for the estate.

In formal administration, the court appoints a personal representative (Florida’s term for an executor or administrator) and issues Letters of Administration under section 733.301. Those letters are the personal representative’s badge of authority. They let that person open an estate bank account, liquidate brokerage holdings, sign a deed selling the homestead, deal with the IRS, and litigate on the estate’s behalf. Banks and title companies want to see them.

In summary administration, by contrast, no personal representative is appointed and no letters issue. Instead, the court enters an Order of Summary Administration that directly distributes specific assets to specific people. The order itself becomes the instrument the recipients use to claim the property. There is no one with ongoing authority to “run” the estate, which is fine when the estate is simple and clean, and a serious problem when it is not.

When Summary Administration Is Available in Florida

Section 735.201 sets two independent gateways to summary administration. An estate qualifies if either of these is true:

• The value test. The value of the entire estate subject to administration in Florida, less the value of property exempt from creditors’ claims, does not exceed the statutory threshold. That figure has long been $75,000; under CS/HB 1337 it rises to $150,000 effective July 1, 2026. Because the number is changing, confirm which threshold governs your case before relying on it.
• The two-year test. The decedent has been dead for more than two years, regardless of the estate’s size. This is the gateway most people overlook. After two years, section 733.710 bars creditor claims entirely, which removes the main reason large estates are forced into formal administration.

Summary administration also requires that the will, if there is one, does not direct formal administration. Either a surviving spouse or a beneficiary can file the petition, and every beneficiary must typically join in or be served and given the chance to object.

One detail families miss: the exempt-property carve-out. Florida homestead, a reasonable amount of household furnishings, and up to two motor vehicles are generally exempt from creditors under the Florida Constitution and section 732.402, so their value does not count toward the dollar cap. A modest house plus a small bank account can still squeak under the limit once the homestead is excluded.

When Formal Administration Is Required

Formal administration is the default. If the estate cannot satisfy a summary gateway, this is the road. You also need formal administration whenever the practical realities demand a person with authority, including when:

1. The non-exempt estate exceeds the statutory threshold and the decedent died within the last two years.
2. Someone must actively manage assets, sell real property, run a business, or pursue a wrongful-death or other lawsuit.
3. Creditors must be identified, noticed, and either paid or barred in an orderly way under section 733.701 and following.
4. The will is unclear, ambiguous, or likely to be challenged, so the estate needs a representative to defend it.
5. An estate tax return or significant federal filing is required and someone must sign for the estate.

Formal administration follows a predictable arc: petition for administration, appointment of the personal representative and issuance of letters, notice to creditors published once a week for two consecutive weeks plus direct service on known creditors, a 90-day claims window, filing of an inventory, payment of valid claims and expenses, distribution to beneficiaries, and finally a petition for discharge. In an uncontested estate this typically takes nine to fourteen months. Add a will contest and it can run considerably longer.

Timeline and Cost, Side by Side

Speed and expense are where the two procedures diverge most visibly.

Summary administration can conclude in a matter of weeks once the petition and supporting documents are filed and all beneficiaries sign on. There is no creditor-notice period to wait out (though a diligent search for creditors is still required, and known creditors should be paid or provided for). Court costs and attorney’s fees are correspondingly lower because there is no personal representative, no inventory, no accounting, and no discharge.

Formal administration costs more and takes longer because the statute builds in oversight at each step: bonding questions, the 90-day creditor window, inventories, accountings, and judicial sign-off on distribution and discharge. Attorney’s fees in formal administration are often set by reference to the presumptively reasonable schedule in section 733.6171, which ties a baseline fee to the size of the compensable estate. Families should not treat that schedule as a fixed price, though; fees can be negotiated, and complex or contested estates frequently warrant hourly or contract arrangements.

The Trap Families Don’t See: Creditor Exposure

Summary administration is appealing precisely because it skips the creditor-notice machinery. But skipping it does not erase the debts. If the decedent died less than two years ago and you take property through summary administration, section 735.206 makes each recipient personally liable to estate creditors, up to the value of what they received, for up to two years after the death. A beneficiary who pockets a $60,000 account and spends it can be sued by a hospital or credit-card company that surfaces eight months later.

That is why the two-year gateway is so valuable. Once more than two years have passed, claims are barred by section 733.710, the liability evaporates, and summary administration becomes both cheap and safe. Inside the two-year window, the analysis is more delicate, and it is worth a careful conversation about whether the savings justify the exposure.

Why This Choice Matters When a Will May Be Contested

For families already bracing for a fight, the procedural choice is strategic, not just administrative. We see this constantly with blended families, second marriages, and last-minute amendments to a will.

Summary administration is built for consensus. It generally needs every beneficiary to join or be served, and it lacks a personal representative to defend the will or to investigate suspicious transfers. If an heir suspects undue influence, lack of capacity, or a forged or improperly executed will, the summary route can actually work against them, because there is no representative and no formal claims process in which to litigate. In a genuine dispute, formal administration is usually the right tool: it creates a fiduciary with standing, a structured timeline, and a forum in which a . The mechanics in New York differ from Florida’s, but the underlying logic of needing a supervised proceeding to resolve a fight is the same in both states.

The flip side: a contestant who wants leverage sometimes objects to summary administration specifically to force the estate into the slower, more transparent formal track. Knowing which lever you are pulling, and why, is the difference between a quick resolution and an expensive stalemate. For background on how supervised estate administration unfolds, this overview of is a useful companion read alongside our Florida-specific guidance.

How to Decide

A practical way to think through it:

• Start with the two-year question. If the decedent died more than two years ago, summary administration is almost always the answer, regardless of value.
• Then run the value test. Subtract exempt assets, especially homestead, before comparing to the threshold.
• Stress-test for disputes. If any beneficiary is unlikely to cooperate, or you anticipate a challenge, lean toward formal administration even if you technically qualify for summary.
• Account for what the estate must do. Selling property, running a business, or suing on a claim all argue for the authority that only formal administration provides.

None of this is one-size-fits-all. The same $90,000 estate might call for summary administration in one family and formal administration in another, depending entirely on the relationships and the assets involved. If you are weighing your options, our team handles both tracks across South Florida; you can learn more about our or read our overview of Florida probate procedure and how wills are proved and challenged. When you are ready to talk specifics, reach out for a consultation so we can match the procedure to your situation rather than the other way around.

Frequently Asked Questions

What is the dollar limit for summary administration in Florida?

The non-exempt estate value must not exceed the statutory threshold under section 735.201. That figure has been $75,000, and under CS/HB 1337 it increases to $150,000 effective July 1, 2026. Exempt assets such as homestead, household furnishings, and up to two vehicles are excluded from the calculation, so confirm which threshold applies to your case.

Can summary administration be used even if the estate is large?

Yes. There are two independent gateways. The second is purely time-based: if the decedent has been dead for more than two years, the estate qualifies for summary administration regardless of size, because creditor claims are barred after two years under section 733.710.

Does summary administration appoint an executor or personal representative?

No. Summary administration appoints no personal representative and issues no Letters of Administration. Instead, the court enters an Order of Summary Administration distributing specific assets to specific people. If you need someone with authority to sell property, run a business, or litigate, you need formal administration.

Is summary administration risky if the death was recent?

It can be. Under section 735.206, if the decedent died less than two years ago, each person who receives property through summary administration is personally liable to estate creditors up to the value received, for up to two years. That exposure disappears once more than two years have passed.

Which probate path is better when a will might be contested?

Usually formal administration. It appoints a personal representative with standing to defend the will, sets a structured timeline, and provides a forum to litigate claims of undue influence, lack of capacity, or improper execution. Summary administration generally requires beneficiary consensus and offers no representative to handle a fight.

That short answer hides a lot of moving parts, and the parts matter most when a family is already at odds. When relatives are fighting over a will, the question of “who pays Mom’s credit cards?” or “does the IRS get paid before my brother gets his share?” becomes a flashpoint. This article walks through how debts and taxes actually move through a Florida estate, where disputes tend to erupt, and what families should watch for.

How Debts Are Handled in Florida Probate

When someone dies owning assets in their sole name, those assets don’t pass straight to the heirs. They flow into the probate estate, and the estate becomes responsible for settling what the decedent owed. The person in charge of that process is the personal representative (Florida’s term for an executor or administrator), appointed by the circuit court.

The governing law lives in Chapter 733 of the Florida Statutes, the part of the Florida Probate Code that deals with estate administration. One of the personal representative’s core jobs is to identify creditors, evaluate the claims they file, pay the legitimate ones, and object to the ones that don’t hold up.

A point that surprises a lot of families: beneficiaries almost never inherit a debt. If your father died owing $40,000 on credit cards and left an estate worth $25,000, the creditors share what’s there and the rest generally goes unpaid. You don’t write a check from your own pocket to cover the shortfall. The exceptions are narrow, such as a debt you personally co-signed or a jointly held obligation.

The Creditor Claim Process and Critical Deadlines

Florida runs creditor claims on a clock, and the clock is unforgiving. The personal representative is required to publish a Notice to Creditors in a local newspaper and to serve that notice directly on creditors who are “reasonably ascertainable” — the ones a diligent search would turn up, like a known mortgage lender or hospital.

Two deadlines control everything:

• Three months from first publication. Under Florida Statute 733.702, most creditors must file their claim within three months after the first publication of the Notice to Creditors. Miss it, and the claim is typically barred.
• Thirty days from being served. A creditor who is served directly gets the later of the three-month publication window or 30 days after the date of service.
• The two-year outer limit. Under Florida Statute 733.710, no claim survives more than two years after the decedent’s death, regardless of notice. This is a hard statute of repose, not a soft deadline.

These rules cut both ways. They protect the estate from stale, surprise debts, but they also mean a personal representative who skips proper notice can expose the estate — and sometimes themselves — to claims that should have been time-barred.

The Order in Which Debts Get Paid

An estate rarely has unlimited cash, so Florida law dictates who gets paid first when funds are tight. Florida Statute 733.707 sets the order of priority for paying claims. Beneficiaries come dead last — they receive only what remains after every senior class is satisfied. The statutory classes, in simplified order, run roughly like this:

1. Costs and expenses of administration, including reasonable attorney’s fees.
2. Reasonable funeral and burial expenses (capped by statute).
3. Debts and taxes with a federal preference, such as certain IRS obligations.
4. Reasonable and necessary medical expenses of the last 60 days of the decedent’s final illness.
5. Family allowance.
6. Court-ordered child support arrearages.
7. Business debts acquired after death (where the estate continued a business).
8. All other claims, including general unsecured debts like credit cards.

If the estate can’t pay every class in full, creditors within a lower class share proportionally and the classes below them get nothing. This priority ladder is exactly where disputes ignite, because a beneficiary who expected a meaningful inheritance may watch it evaporate into administration costs and medical bills.

Secured Debts: Mortgages, Car Loans, and Liens

Secured debts behave differently from credit card balances. A mortgage is tied to the house; a car loan is tied to the car. The lien follows the asset, not the heir. If your mother left you her condo subject to a $150,000 mortgage, the lender’s security interest doesn’t disappear because she died. Someone has to keep paying, refinance, or sell, or the lender can foreclose.

Florida’s homestead protections add a wrinkle that trips up many families. A constitutionally protected homestead generally passes outside the reach of most creditors and outside the normal probate creditor process — but the mortgage on that homestead still has to be dealt with. Sorting out which debts attach to which assets is one of the more technical aspects of administration, and it’s a frequent subject of Florida probate litigation when heirs disagree about who should shoulder a secured loan.

Taxes in a Florida Probate Estate

Tax is where clients tend to relax once they hear the headline: Florida has no state estate tax and no state inheritance tax. The state repealed its estate tax years ago, and it has never imposed a tax on heirs for receiving an inheritance. So a Florida resident’s family does not pay Florida a percentage of what they inherit.

But “no Florida death tax” is not the same as “no taxes.” Several tax obligations can still arise, and the personal representative is responsible for handling them correctly.

The Decedent’s Final Income Tax Return

The most common tax task is the decedent’s final federal income tax return (Form 1040), covering income earned from January 1 through the date of death. If the person had wages, pension income, investment income, or required minimum distributions before they died, that income is reported one last time. Any refund belongs to the estate; any balance owed becomes a debt of the estate.

Income Tax on the Estate Itself

While probate is open, the estate can earn income — interest, dividends, rent, or gains from selling property. If that income crosses the IRS threshold, the estate must obtain its own tax identification number and file a fiduciary income tax return (Form 1041). The longer an estate stays open, often because of a will contest, the more likely a 1041 becomes necessary.

Federal Estate Tax (Rarely Applies)

Federal estate tax exists, but it touches very few families. It only applies to estates that exceed the federal exemption, which sits in the multi-million-dollar range and is indexed for inflation. Because the threshold is so high, the overwhelming majority of Florida estates owe no federal estate tax at all. For the small number that do, a Form 706 is filed with the IRS, generally due nine months after death. If you suspect an estate is large enough to be in this territory, that’s a conversation to have with counsel early, not after the deadline.

A Note on Inherited Assets and Capital Gains

One favorable rule worth knowing: inherited assets generally receive a “stepped-up” cost basis equal to their fair market value on the date of death. If a beneficiary later sells the inherited stock or real estate, capital gains are calculated from that stepped-up value, often dramatically reducing the taxable gain compared with what the decedent would have owed.

Where Debts and Taxes Spark Family Disputes

Our practice focuses on families facing will contests and estate disputes, and money owed by the estate is a recurring trigger. A few patterns come up again and again:

• Suspicion that the personal representative paid the “wrong” people. A beneficiary who feels shortchanged may allege the representative paid friends, themselves, or lower-priority creditors out of order.
• Disputed claims. A relative or caretaker files a claim for “loans” or services they say the decedent owed them, and the family fights over whether the debt is even real.
• Insolvent estates. When debts exceed assets, expected inheritances vanish, and grief curdles into accusations.
• Missed notice or missed deadlines. A representative who botched the creditor notice process can be challenged for exposing the estate to claims that should have been barred.

These conflicts often surface alongside challenges to the will itself — questions of undue influence, lack of capacity, or improper execution. When that happens, the debt-and-tax questions and the validity questions become tangled, and the administration grinds to a halt. Experienced litigators handle these on both coasts; the team at Morgan Legal regularly represents families in and guides personal representatives through a contested from start to finish.

The Personal Representative’s Duty and Personal Exposure

A personal representative is a fiduciary. That means they owe the estate and its beneficiaries a duty of loyalty and care, and they can be held personally liable for getting the debt-and-tax sequence wrong. Two mistakes carry real risk:

• Distributing too early. Hand out inheritances before paying valid creditors and taxes, and the representative may have to make the estate whole from their own funds.
• Ignoring tax obligations. The IRS can pursue a fiduciary personally for distributing assets while federal taxes remain unpaid.

This is why prudent representatives don’t rush. They wait out the creditor claim period, confirm the tax picture, and distribute only what’s safely left over. A family member serving as representative for the first time should not navigate this alone, and good counsel pays for itself by preventing exactly these errors. For Florida-specific guidance, Morgan Legal’s help personal representatives meet every deadline and document every payment.

Practical Steps for Families and Personal Representatives

If you’re stepping into the role of personal representative, or you’re a beneficiary worried about how debts and taxes are being handled, focus on the fundamentals:

• Gather a complete picture of what the decedent owned and owed before paying anyone.
• Publish and serve the Notice to Creditors correctly, and calendar the three-month and two-year deadlines.
• Evaluate each claim — objecting to questionable ones is part of the job, not a hostile act.
• Pay debts strictly in statutory order under Section 733.707.
• File the final 1040, and a 1041 if the estate earned income; confirm whether a 706 is even on the table.
• Keep meticulous records; transparency is the best defense against a dispute.

Probate is rarely the cold, mechanical process people expect. Debts and taxes have a way of turning ordinary administration into a contested matter, especially in families already divided over a will. If you’re facing that situation, get advice before money moves. You can reach our team to talk through where you stand, and review our overview of wills and estate planning to understand how these issues trace back to the documents the decedent left behind.

Frequently Asked Questions

Are heirs personally responsible for a deceased person's debts in Florida?

Generally no. Debts are paid from the probate estate’s assets, not from the beneficiaries’ own money. If the estate runs out of funds, most unpaid debts simply go unsatisfied. The main exceptions are debts you personally co-signed or jointly owed with the decedent.

How long do creditors have to file a claim against a Florida estate?

Under Florida Statute 733.702, most creditors must file within three months of the first publication of the Notice to Creditors, or 30 days after being served directly, whichever is later. Florida Statute 733.710 bars any claim filed more than two years after death.

Does Florida have an estate tax or inheritance tax?

No. Florida has no state estate tax and no state inheritance tax. Heirs do not pay Florida a percentage of what they inherit. Federal estate tax can apply, but only to estates exceeding the multi-million-dollar federal exemption, so it affects very few Florida families.

In what order are debts paid in Florida probate?

Florida Statute 733.707 sets the priority. Administration costs and attorney’s fees come first, followed by funeral expenses, certain taxes and federal-preference debts, last-illness medical expenses, family allowance, child support arrears, and finally general unsecured debts like credit cards. Beneficiaries receive only what remains.

Can a personal representative be held personally liable for mishandling debts or taxes?

Yes. A personal representative is a fiduciary. Distributing inheritances before paying valid creditors and taxes, or paying creditors out of statutory order, can make the representative personally liable to creditors, the IRS, or the beneficiaries.

If you are an heir or a named personal representative watching the months tick by, the frustrating part is that probate rarely stalls for a single dramatic reason. It usually slows because of a chain of smaller problems, each one adding weeks. After years of administering and litigating Florida estates across Miami-Dade, Broward, and Palm Beach counties, I can tell you that the delays are predictable. And because they are predictable, most of them are preventable.

How long is Florida probate supposed to take?

There is no statutory deadline that forces an estate to close by a certain date. Florida law sets minimum waiting periods, not maximum ones. The single biggest mandatory wait is the creditor claims window: under Florida Statutes section 733.702, creditors generally have until the later of three months after the first publication of the Notice to Creditors, or thirty days after they are personally served, to file a claim. That three-month clock alone means even a flawless formal administration cannot realistically close in under five or six months.

For smaller estates, Florida offers a shortcut. Summary administration under Chapter 735 is available when the value of the estate subject to administration is $75,000 or less (excluding exempt property like the homestead), or when the decedent has been dead for more than two years. Summary administration skips the appointment of a personal representative and often wraps up in a few months. Formal administration under Chapter 733, used for larger or more complicated estates, runs longer because of the added court oversight. Choosing the wrong track, or discovering mid-stream that you should have filed the other one, is itself a frequent source of delay.

The most common reasons Florida probate gets delayed

Below are the issues I see derail timelines most often. They tend to cluster, so an estate that hits one is unfortunately more likely to hit others.

1. A will contest or challenge to the will’s validity

Nothing freezes an estate faster than a fight over the will itself. Once an interested person formally objects, distribution effectively stops until the dispute is resolved. Under Florida Statutes section 733.212, an interested person served with the Notice of Administration has three months to object to the validity of the will, the venue, or the court’s jurisdiction, or the objection is forever barred. That deadline is a double-edged sword: it can trap an heir who waits too long, and it can launch litigation that consumes a year or more when someone objects in time.

Will contests in Florida usually rest on one of a handful of grounds:

• Undue influence — a claim that someone in a confidential relationship pressured the decedent into signing.
• Lack of testamentary capacity — the decedent did not understand the nature of the document or the extent of their property.
• Improper execution — the will was not signed and witnessed in the manner required by Florida law.
• Fraud or forgery — the signature or the document itself is not genuine.

These cases require depositions, medical records, and often expert testimony. If your family is heading toward this kind of dispute, it is worth understanding the full landscape early; this overview of the walks through how contests typically unfold and what they cost in time.

2. A defective, lost, or ambiguous will

Even without an active contest, the will itself can be the bottleneck. Florida courts require self-proving wills to include a specific notarized affidavit. When that affidavit is missing, the personal representative may have to track down the original witnesses and obtain sworn statements (oath of witness), which can take weeks if a witness has moved, become incapacitated, or died.

Worse is the lost original. If only a copy exists, Florida treats the will as presumptively revoked, and the proponent must overcome that presumption with evidence. Ambiguous language, conflicting codicils, or handwritten edits all invite litigation over what the document actually means. Clear drafting up front prevents most of this; our notes on building enforceable estate documents on the wills page explain why execution formalities matter so much.

3. Problems with creditor notice and claims

The personal representative has a duty to conduct a diligent search for creditors and to serve a Notice to Creditors on those who are known or reasonably ascertainable, in addition to publishing notice in a local newspaper. Get this wrong and the estate pays for it twice.

If the representative fails to serve a known creditor, that creditor may retain the right to file a claim for up to two years from the date of death, long after the representative hoped to distribute. On the other end, a poorly handled publication or a missed deadline can leave the estate exposed. Disputed claims, such as a contested medical bill or a credit card balance the family doubts, must be litigated as independent actions, and that can hold up final distribution for months.

4. Family disputes and uncooperative beneficiaries

Some delays have nothing to do with the law and everything to do with relationships. Blended families, estranged siblings, and a personal representative who is also a beneficiary all create friction. Common flashpoints include:

1. Disagreement over who should serve as personal representative.
2. Suspicion that the representative is self-dealing or hiding assets.
3. Fights over personal property with sentimental value but little dollar value.
4. Objections to the representative’s accounting or to attorney and executor fees.
5. One heir refusing to sign waivers that would otherwise speed up closing.

A beneficiary who demands a full formal accounting, which is their right, can add months. So can a petition to remove the personal representative for breach of fiduciary duty. These conflicts are exactly the kind our practice is built to manage, and addressing them early, before positions harden, is almost always cheaper than litigating them later.

5. Hard-to-value or illiquid assets

An estate full of cash and publicly traded stock is easy to settle. An estate built around a closely held business, raw land, a vacation home in another state, or a collection of fine art is not. Each of these requires appraisal, and appraisers do not work on the family’s timeline. A South Florida estate that includes a condominium in another country, or a business interest that several partners value differently, can sit in probate while everyone argues over the number.

Real property located outside Florida often triggers ancillary administration, a parallel probate in the other state. Running two proceedings at once multiplies the paperwork and the waiting. Estates with significant or complex assets often benefit from the kind of structured administration described on Morgan Legal’s page, where coordinating valuation, tax, and distribution in sequence keeps the process from stalling.

6. Tax issues and final returns

While Florida has no state estate tax, the estate may still owe federal estate tax, and the decedent’s final income tax return must be filed. If the estate is large enough to require a federal estate tax return (Form 706), the personal representative is often advised to wait for a closing letter or transcript from the IRS before making final distributions, because distributing too early can leave the representative personally on the hook. That wait alone can add the better part of a year to a taxable estate.

7. Court backlog and procedural missteps

Finally, never underestimate the ordinary friction of the system. Florida’s busier probate divisions, including those serving Miami-Dade and Broward, carry heavy dockets. A rejected filing, a missing original document, an unsigned order waiting on a judge’s signature, or a hearing set out two months because the calendar is full all add time. Many self-represented personal representatives lose weeks to small clerical rejections that an experienced probate attorney would never have triggered.

How to keep a Florida estate moving

The good news is that most of these delays respond to the same handful of habits. Move quickly to open the estate and qualify the personal representative. Conduct a thorough creditor search at the outset rather than discovering an overlooked claimant later. Get appraisals ordered early on anything illiquid. Communicate with beneficiaries in writing and proactively, because silence breeds the suspicion that turns into litigation. And when a will contest looks possible, get counsel involved before the three-month objection window under section 733.212 closes, not after.

If your family is dealing with property in more than one state, or an estate that touches Florida and elsewhere, coordinating local counsel matters. The Florida side of these administrations is handled through Morgan Legal’s , and you can find an overview of how we approach the full process on our Florida probate page.

Probate does not have to drag. It drags when problems are discovered late, when communication breaks down, and when the wrong administration track is chosen. Catch those things early and a Florida estate that might have taken three years can close in well under one.

Frequently asked questions about Florida probate delays

How long does probate take in Florida on average?

A straightforward formal administration usually takes six to twelve months, driven largely by the mandatory three-month creditor claims period under section 733.702. Summary administration for smaller estates can finish in three to six months. Contested estates routinely run one to three years.

Can a single beneficiary hold up the entire estate?

Yes. A beneficiary can demand a formal accounting, object to fees, contest the will within the three-month window under section 733.212, or petition to remove the personal representative. Any of these can pause distribution until the court resolves the issue, which is why early communication is so valuable.

What is the fastest way to settle a small estate in Florida?

If the estate subject to administration is worth $75,000 or less excluding exempt property, or the decedent has been deceased more than two years, summary administration under Chapter 735 is the fastest path. It skips appointing a personal representative and often closes in a few months.

Does a will contest stop the whole probate?

It effectively halts distribution. The estate can still be administered, creditors paid, and assets preserved, but the property generally cannot be distributed to beneficiaries until the validity of the will is resolved by settlement or by the court.

Should I hire a probate attorney to avoid delays?

In Florida, formal administration requires an attorney in almost every case, and even where it does not, experienced counsel prevents the rejected filings, missed deadlines, and overlooked creditors that cause most avoidable delays. If a dispute is brewing, get a probate attorney involved before deadlines run. Contact us through our contact page to discuss your situation.

Frequently Asked Questions

How long does probate take in Florida on average?

A straightforward formal administration usually takes six to twelve months, driven largely by the mandatory three-month creditor claims period under Florida Statutes section 733.702. Summary administration for smaller estates can finish in three to six months, while contested estates routinely run one to three years.

Can a single beneficiary hold up the entire estate?

Yes. A beneficiary can demand a formal accounting, object to fees, contest the will within the three-month window under section 733.212, or petition to remove the personal representative. Any of these can pause distribution until the court resolves the issue, which is why early, proactive communication is so valuable.

What is the fastest way to settle a small estate in Florida?

If the estate subject to administration is worth $75,000 or less excluding exempt property, or the decedent has been deceased more than two years, summary administration under Chapter 735 is the fastest path. It skips appointing a personal representative and often closes in a few months.

Does a will contest stop the whole probate?

It effectively halts distribution. The estate can still be administered, creditors paid, and assets preserved, but the property generally cannot be distributed to beneficiaries until the validity of the will is resolved by settlement or by the court.

Should I hire a probate attorney to avoid delays?

In Florida, formal administration requires an attorney in almost every case, and even where it does not, experienced counsel prevents the rejected filings, missed deadlines, and overlooked creditors that cause most avoidable delays. If a dispute is brewing, get a probate attorney involved before deadlines run.

That description sounds tidy. In practice, the probate court is where grieving families discover that a stepmother is named on a bank account, that a will surfaced that nobody knew about, or that the person holding the checkbook has been quietly draining it. If your family is staring down a will contest or a fight over an estate, understanding what the court can and cannot do is the first step toward getting a fair result. This article walks through the court’s actual role, the people it supervises, and the levers it pulls when an estate turns contentious.

What Is the Florida Probate Court?

Florida does not have a freestanding “probate court” the way some states do. Instead, each of Florida’s twenty judicial circuits has a probate division within its circuit court. A judge assigned to that division hears probate matters: estate administration, guardianship, and often trust disputes. When people in Miami-Dade, Broward, or Palm Beach County talk about “going to probate court,” they mean filing a case in the probate division of their local circuit court, usually in the county where the decedent lived at the time of death.

The court’s authority comes from the Florida Probate Code. Chapter 731 sets out the general provisions and the definitions that govern everything else (see section 731.201). Chapter 732 covers intestate succession and the rules for wills. Chapter 733 governs the administration of estates, from opening the case through closing it. Chapter 735 provides the streamlined alternatives, summary administration and disposition without administration, for smaller estates.

The Core Functions of the Probate Court

Strip away the procedure and the probate court does a handful of essential jobs. Each one matters more when there is conflict in the family.

• Validating the will. The court determines whether the document offered is the decedent’s last valid will. It examines whether the will was properly signed and witnessed under Florida’s execution requirements, and whether a self-proving affidavit accompanies it. If the will is challenged, this is where the fight happens.
• Appointing the personal representative. Florida uses the term “personal representative” rather than “executor.” The court issues Letters of Administration, the document that gives that person legal authority to act for the estate.
• Supervising administration. The personal representative answers to the court. They must inventory assets, give notice to creditors and beneficiaries, pay valid debts and taxes, and ultimately distribute what remains.
• Protecting creditors and beneficiaries. The court enforces the notice requirements and the deadlines that protect everyone with a stake in the estate.
• Resolving disputes. When beneficiaries fight, the court hears objections, removes representatives who breach their duties, and adjudicates claims.

How the Court Appoints and Oversees the Personal Representative

Nothing happens in a formal estate until the court issues Letters of Administration. Before that, the named personal representative is just a person holding a piece of paper. The court reviews the petition, confirms the proposed representative is qualified under Florida law, and then formally appoints them.

Florida is stricter than many states about who can serve. A nonresident generally cannot serve as personal representative unless they are closely related to the decedent, a limitation that surprises out-of-state families all the time. The court also screens for disqualifying factors, such as a felony conviction or mental or physical incapacity.

Once appointed, the personal representative becomes a fiduciary. That is a legal term with teeth. They owe the estate and its beneficiaries duties of loyalty and care, and they must act in the estate’s interest, not their own. The court supervises by requiring an inventory of assets, accountings, and, at the end, a plan of distribution. If a beneficiary believes the representative is self-dealing, hiding assets, or simply not doing the job, the court is where they go to demand an accounting or seek removal under Chapter 733. New York families face a parallel structure through the Surrogate’s Court; Morgan Legal’s overview of is a useful comparison for anyone with assets in both states.

The Court’s Role in Notice, Creditors, and Deadlines

A large part of what the probate court enforces is timing. Florida law is built around deadlines, and missing one can extinguish a right entirely.

Early in a formal administration, the personal representative must serve a Notice of Administration on interested parties under section 733.212. This notice is significant: it triggers a three-month window for beneficiaries to object to the validity of the will, to the qualifications of the personal representative, or to the court’s jurisdiction. If you have grounds to contest and you sit on them past that window, you can lose the right to raise them at all.

The court also oversees creditor claims. The representative publishes a Notice to Creditors under section 733.2121 and serves known creditors directly. Creditors then face their own deadline under section 733.702 to file claims, generally the later of three months from first publication or thirty days from being served. The court polices these dates and rules on objections to claims that are late or disputed.

1. Open the estate by petitioning for administration and getting Letters issued.
2. Give notice to beneficiaries and creditors, starting the objection and claims clocks.
3. Inventory and value the estate’s assets.
4. Pay valid claims, expenses, and taxes in the order Florida law requires.
5. Distribute the remainder and petition to close the estate.

When Families Fight: The Probate Court as Referee

This is where the court matters most to the families our firm represents. A will contest is not a casual disagreement; it is formal litigation inside the probate case. To overturn a Florida will, a challenger generally has to prove one of a narrow set of grounds:

• Lack of testamentary capacity. The decedent did not understand the nature of their property or who their natural beneficiaries were.
• Undue influence. Someone in a position of trust pressured the decedent into a will that reflects the influencer’s wishes, not the decedent’s. Florida courts look hard at whether a substantial beneficiary was active in procuring the will while occupying a confidential relationship.
• Improper execution. The will was not signed or witnessed the way Florida law requires.
• Fraud, duress, or mistake. The decedent was deceived or coerced.

The probate judge presides over discovery, hears evidence, and decides these contests, sometimes after a bench trial. The court can also resolve fights short of a full contest: disputes over the meaning of an ambiguous bequest, objections to a personal representative’s accounting, petitions to surcharge a representative for losses caused by misconduct, and disputes over homestead and the rights of a surviving spouse. Many of these conflicts mirror the friction points described in Morgan Legal’s discussion of the , which translate closely to Florida even though the procedural labels differ.

One practical note on cost: attorney’s fees in an estate are governed by section 733.6171, and in a contested matter the court has real influence over what is reasonable and who ultimately bears those fees. That makes early strategy decisions, whether to litigate, negotiate, or mediate, financially consequential.

Formal vs. Summary Administration in Florida Probate Court

Not every estate gets the full treatment. Florida offers two main paths, and the court’s involvement scales accordingly.

Formal administration is the standard process for larger or contested estates. It involves a personal representative, Letters of Administration, the full notice and creditor procedures, and ongoing court supervision. Almost every will contest plays out inside a formal administration.

Summary administration under Chapter 735 is available when the value of the estate subject to probate (excluding exempt property like homestead) is $75,000 or less, or when the decedent has been dead for more than two years. It is faster and cheaper, and it does not appoint a personal representative. But it is a poor fit when family members are at war, because it offers fewer procedural tools to surface assets and resolve disputes.

Choosing the wrong path can be a costly mistake. If you suspect a dispute is brewing, formal administration usually gives you the leverage and the oversight you need. A South Florida probate attorney can map the right route before you commit. You can also review our overview of Florida probate and our practical guidance on wills to understand how these pieces fit together, and Morgan Legal’s Florida team offers a parallel for additional context.

What the Probate Court Cannot Do

It helps to know the limits. The probate court generally has no say over assets that pass outside probate: jointly titled property with right of survivorship, accounts with valid pay-on-death or transfer-on-death designations, life insurance and retirement accounts with named beneficiaries, and assets held in a properly funded living trust. Those move by operation of law or contract, not by the will.

That distinction is exactly where many family fights originate. A daughter named as personal representative may find that the bulk of dad’s wealth went to a recently added joint account holder, leaving the probate estate nearly empty. The probate court can sometimes reach those transfers, through claims of undue influence or fraud, but only if someone brings the right action with the right evidence. The court does not police these issues on its own; it responds to the parties who show up and ask.

Talk to a South Florida Probate Attorney Before the Clock Runs

The Florida probate court is methodical, deadline-driven, and unforgiving of inaction. Whether you are a personal representative trying to do the job correctly or a beneficiary who suspects something is wrong, the worst move is to wait and hope it resolves itself. The objection window after a Notice of Administration is short, and creditor and contest deadlines pass quickly.

If your family is facing a will dispute, a contested administration, or a personal representative who will not account for the estate, get advice early. Contact our South Florida probate team to understand your rights and the deadlines that govern them before they expire.

Frequently Asked Questions

Which court handles probate in Florida?

Probate is handled by the probate division of the circuit court in the Florida county where the decedent lived at the time of death. Florida does not have a separate standalone probate court; instead, each of the twenty judicial circuits has a probate division within its circuit court that hears estate administration, will contests, and related disputes under the Florida Probate Code.

What does the probate court actually decide?

The probate court validates the will, appoints and supervises the personal representative by issuing Letters of Administration, enforces notice and creditor deadlines, and resolves disputes such as will contests, objections to accountings, and petitions to remove a representative. It oversees the estate from opening through final distribution and closing.

How long do I have to contest a will in Florida?

Once you are served with a Notice of Administration under section 733.212 of the Florida Statutes, you generally have three months to object to the validity of the will, the qualifications of the personal representative, or the court’s jurisdiction. Missing that window can permanently bar your challenge, so it is critical to act quickly and consult a Florida probate attorney.

Does every estate have to go through formal probate court?

No. Florida offers summary administration under Chapter 735 when the probate estate (excluding exempt property like homestead) is $75,000 or less, or when the decedent has been deceased more than two years. Some small estates qualify for disposition without administration. Larger or contested estates, however, require formal administration with full court supervision.

Can the probate court control assets like joint accounts or life insurance?

Generally no. Assets with survivorship rights, valid pay-on-death or transfer-on-death designations, beneficiary-designated life insurance and retirement accounts, and trust assets pass outside probate. The court can sometimes reach such transfers through claims of undue influence or fraud, but only if an interested party brings the appropriate action with supporting evidence.

If you are an heir, a surviving spouse, or a personal representative trying to understand who actually owns the family home after a death, this is the article to read first. Homestead law is technical, it is unforgiving, and it routinely surprises families who assumed a will controlled everything.

What “homestead” actually means in a Florida probate

People in Florida use the word “homestead” to mean three different things, and confusing them is the first mistake families make.

• The tax exemption — the up-to-$50,000 reduction in assessed value plus the Save Our Homes 3% assessment cap. This is property-tax law and has little to do with probate.
• The creditor-protection homestead — Article X, Section 4 of the Florida Constitution, which shields a primary residence from forced sale by most creditors.
• The devise-restriction homestead — the constitutional limits on how you can leave your home in a will when you have a surviving spouse or a minor child.

The last two are what matter when someone dies. They are governed by the same constitutional provision, but they do different work. The creditor protection follows the property to the heirs. The devise restriction can override the will entirely.

The size and location requirements

Constitutional homestead protection applies to a residence on up to one-half acre inside a municipality, or up to 160 contiguous acres outside a municipality. The property must be the decedent’s primary residence — not a vacation condo, not a rental. A snowbird who claims Florida residency but actually lives in New York most of the year may find that the Florida home does not qualify, which opens the door to a different result entirely.

Why homestead usually passes outside probate

Here is the part that catches families off guard. When a Florida resident dies owning a qualifying homestead, the property typically is not a probate asset in the ordinary sense. Title vests in the heirs or devisees at the moment of death, and the constitutional creditor protection passes with it. The personal representative usually cannot sell the homestead to pay the decedent’s debts (with narrow exceptions, such as a mortgage on the property itself or certain tax liens).

This is enormously valuable. Credit card debt, medical bills, and most judgments cannot reach the homestead in the heirs’ hands. But it also means the home is governed by its own set of rules that sit on top of — and sometimes against — the decedent’s estate plan.

Probate is still involved in one important way: the court typically needs to enter an order determining homestead, confirming that the property qualified and identifying who took title. Many a clean-looking inheritance has stalled for months because no one petitioned for that order and the title company refused to insure a later sale.

The devise restriction: when the will doesn’t control the house

This is the engine behind most homestead disputes. Under Article X, Section 4(c) of the Florida Constitution, a person cannot freely devise homestead property if they are survived by a spouse or a minor child. Florida Statutes section 732.4015 carries this restriction into the probate code.

What happens if someone tries anyway? Suppose a widower with two minor children leaves the homestead “to my brother” in his will. That devise is invalid. The home does not go to the brother. Instead, it passes by the statutory default in section 732.401.

The default rules under section 732.401

When a homestead is not validly devised and the decedent is survived by a spouse and one or more descendants, Florida law gives the surviving spouse a choice:

1. A life estate in the homestead, with a vested remainder to the decedent’s descendants; or
2. An undivided one-half interest as a tenant in common, with the other half passing to the descendants — but the spouse must elect this within six months of the decedent’s death and record the election.

That election deadline is a hard trap. A surviving spouse who does not act in time is stuck with the life estate, which can be a worse outcome when the spouse and the stepchildren do not get along — and stepchildren are precisely who tends to litigate. A life estate sounds generous until the spouse realizes they are responsible for taxes, insurance, and upkeep on a house they cannot sell without the remaindermen’s cooperation.

The most common homestead dispute we see in South Florida

The classic fight runs like this. A parent remarries late in life. The parent owns the homestead and wants the new spouse to keep living there, but ultimately wants the home to go to the children from the first marriage. The will says exactly that. The parent dies.

Now the surviving spouse and the adult children are co-owners of one piece of real estate, with conflicting interests and no relationship. The spouse wants to stay; the children want to sell and split the proceeds. Add a life-estate-versus-tenancy election, a question about whether the spouse waived homestead rights in a prenuptial agreement, and a personal representative caught in the middle, and you have litigation.

These disputes are rarely about whether the will is “valid.” They are about a constitutional rule that quietly rewrote the will the moment the testator died. If you are challenging or defending a will and the family home is involved, the homestead analysis often matters more than the will-contest grounds themselves. For families weighing a broader challenge to a will’s validity, our overview of Florida will contests and disputes walks through the separate grounds — undue influence, lack of capacity, and improper execution — that can run alongside a homestead claim.

Can homestead rights be waived?

Yes — and this is often the deciding fact. A spouse can waive homestead devise and descent rights, but the waiver has to meet the requirements of Florida Statutes section 732.702. A general “I waive all rights” clause buried in a prenuptial agreement may or may not be enough; the waiver of homestead specifically must be clear, and fair disclosure rules can apply depending on timing. We have seen seven-figure homes turn on whether two sentences in a 20-year-old prenup actually waived homestead. Do not assume a waiver exists, and do not assume one is valid, without a careful read.

Homestead, creditors, and the personal representative’s duties

A personal representative who treats the homestead like any other estate asset can create personal liability. Because the protected homestead generally is not subject to administration, the PR should not pay estate debts out of it, list it for sale to satisfy creditors, or include it in the assets available to general creditors without a court order. The smarter move is almost always to petition early for a determination of homestead status so everyone knows whether the property is in or out of the estate.

There are real exceptions worth flagging:

• Mortgages and home-equity loans on the homestead itself survive death and remain enforceable against the property.
• Property taxes and certain tax liens attach to the home.
• Construction (mechanic’s) liens for work on the home can be enforced.
• If the property does not qualify as homestead, all of these protections evaporate and the home becomes a regular estate asset reachable by creditors.

How Florida homestead compares to probate in other states

Florida’s homestead protection is among the strongest in the country, and it behaves very differently from the way inherited real estate is handled elsewhere. In New York, for example, there is no constitutional homestead devise restriction; a will generally controls who inherits the family residence, and the property is administered through the estate with the usual creditor process. Families who own property in more than one state are frequently surprised by how differently the same situation plays out. Morgan Legal’s New York attorneys handle the parallel questions in that state’s system — see their explanation of the and their breakdown of the for a sense of how non-homestead states approach the same inheritance questions.

For Florida-specific matters, our firm and Morgan Legal’s focus squarely on the constitutional homestead rules that drive so many South Florida estate disputes.

Practical steps if a homestead is involved in your case

1. Confirm the property actually qualified as homestead — residency, size, and primary-use facts all matter.
2. Read the will against section 732.4015 to see whether the devise is even valid given any surviving spouse or minor child.
3. Check for a waiver in any marital agreement, and verify it meets section 732.702.
4. Calendar the six-month spousal election deadline immediately — it does not wait for the litigation to settle.
5. Petition for an order determining homestead so title is clean for any future sale.

Homestead law rewards families who move early and punishes those who wait. If the family home is at the center of an estate dispute, the analysis above is where the real money — and the real leverage — usually lives. To talk through a specific situation, reach our team through our South Florida probate office, or start with our broader guide to how Florida probate works.

This article is general information about Florida law and is not legal advice. Homestead outcomes turn on specific facts; consult a Florida probate attorney about your situation.

Frequently Asked Questions

Does Florida homestead property go through probate?

Usually not in the ordinary sense. A qualifying Florida homestead generally passes outside the estate to the surviving spouse or heirs at the moment of death and is protected from most creditors. However, the probate court typically still needs to enter an order determining homestead to confirm the property qualified and to clear title for any future sale.

Can a Florida will leave the homestead to anyone the owner chooses?

No, not if the owner is survived by a spouse or a minor child. Under Article X, Section 4 of the Florida Constitution and Florida Statutes section 732.4015, the homestead cannot be freely devised in that situation. An invalid devise is disregarded, and the property passes under the default rules in section 732.401 instead.

What choice does a surviving spouse have regarding the homestead?

When the homestead is not validly devised and there are descendants, the surviving spouse can take a life estate with a remainder to the descendants, or elect within six months to take an undivided one-half interest as a tenant in common. Missing the six-month election deadline locks the spouse into the life estate.

Can a spouse give up homestead rights in a prenuptial agreement?

Yes, but the waiver must satisfy Florida Statutes section 732.702. A vague general waiver may not be enough to surrender homestead-specific rights, and disclosure requirements can apply. Whether a valid waiver exists is often the central question in a homestead dispute, so the marital agreement should be reviewed carefully.

What happens if the property does not qualify as homestead?

If the residence fails the homestead requirements—for example, because it was not the decedent’s primary residence or exceeds the size limits—the constitutional protections disappear. The home then becomes a regular probate asset that the personal representative administers, and it can be reached by the decedent’s creditors.

1. Secure the Person and the Property

Before any legal step, protect what’s there. Locate the original will, secure the home, forward mail, and safeguard valuables, vehicles, and pets. Don’t pay debts or distribute anything yet, and avoid moving money out of the decedent’s accounts.

2. Gather the Core Documents

You’ll need several certified death certificates, the original will (Florida requires the original, not a copy, to begin probate), deeds, account statements, insurance policies, and beneficiary forms. Note that a financial power of attorney under Chapter 709 ends at death and can no longer be used.

3. Figure Out Which Process Applies

Florida offers more than one path:

• Summary administration for smaller or older estates that qualify
• Formal administration for most estates needing a personal representative
• Disposition without administration for very small estates with limited assets

Many assets, like POD accounts, life insurance, and Lady Bird deed property, pass outside probate entirely and won’t go on this track at all.

4. Open the Estate and Get Appointed

For formal administration, the will is filed with the circuit court in the county where the decedent lived, and the named personal representative petitions to be appointed. The court issues Letters of Administration, the document that gives you authority to act on the estate’s behalf.

5. Notify and Inventory

Once appointed, you generally must notify beneficiaries, serve a Notice to Creditors, and file an inventory of the probate assets with values as of the date of death. Florida sets specific deadlines for these steps, so calendar them early.

6. Handle Debts, Claims, and Homestead

Creditors have a limited window to file claims. You review each claim, pay valid ones in the order Florida law requires, and object to those that aren’t proper. Florida homestead property (Art. X, Section 4) is often protected from general creditor claims and is handled separately. Remember Florida has no state estate or inheritance tax, though a final income tax return may still be due.

7. Watch for Spousal Rights

A surviving spouse may be entitled to an elective share under Section 732.2065 and related statutes, plus homestead and family allowance rights. These rights can apply even if the will says otherwise, so confirm them before distributing.

8. Distribute and Close

After debts, taxes, and expenses are settled, you distribute the remaining assets to the beneficiaries, obtain receipts, file a final accounting, and petition to close the estate and be discharged from your duties.

Get Florida Guidance Before You Start

This checklist is a map, not a substitute for advice tailored to your situation. Deadlines, creditor priorities, and spousal rights all carry real consequences if missed. A Florida probate attorney can confirm which path fits and keep the administration on track from opening to discharge.