Is Probate Required in Florida? The Answer Depends on the Asset

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A practical guide to probate assets, nonprobate transfers, and the first steps after a loved one dies.

By Ramona S. Chaplin, Esq.

One of the first questions families ask after a death is, “Do we have to open probate?” The answer is not based only on whether the person had a will. In Florida, the key question is how the deceased person owned each asset and whether the asset already has a legally effective way to pass to someone else.

A Will Does Not Avoid Probate by Itself

A will states who should receive probate assets and may nominate a personal representative. It does not retitle property during life, and it does not automatically transfer assets after death. If an asset was owned solely in the decedent’s name and has no beneficiary or survivorship feature, a probate court order may be needed before the asset can be transferred.

Common Probate Assets

Assets that often require probate include:

  • A bank or investment account titled only in the decedent’s name with no payable-on-death or transfer-on-death beneficiary;
  • Real estate titled solely in the decedent’s name, subject to Florida homestead and other property rules;
  • A vehicle titled only in the decedent’s name when no simpler statutory transfer applies;
  • A refund, settlement, business interest, or check payable to the decedent or the estate; and
  • Personal property that cannot be transferred by agreement or a recognized statutory procedure.

Assets That Often Pass Outside Probate

Probate may not be required for an asset that passes through another valid transfer mechanism, such as:

  • Property owned jointly with a surviving co-owner when the title includes a right of survivorship;
  • Life insurance, retirement accounts, or financial accounts with a valid living beneficiary;
  • Assets properly titled in a funded revocable living trust;
  • Accounts with valid payable-on-death or transfer-on-death designations; and
  • Certain assets transferable through a specific Florida affidavit or administrative process.

The details matter. A deceased beneficiary, incomplete designation, divorce, conflicting documents, creditor issue, or title defect can change the analysis.

Florida Offers More Than One Probate Procedure

Formal administration is the traditional court-supervised process in which a personal representative is appointed to gather assets, address creditors, and distribute the estate. Summary administration may be available when the estate qualifies under Florida law, including when the decedent has been dead for more than two years or when the qualifying estate value falls within the applicable statutory ceiling. Effective July 1, 2026, that standard ceiling is $150,000 after excluding property exempt from creditor claims.

Florida also recognizes limited procedures for certain very small estates and specific assets. Those procedures are not interchangeable, and using the wrong one can delay access to property or expose a recipient to liability.

Florida Homestead Requires Special Attention

A Florida residence may receive constitutional and statutory protections, but homestead is also governed by special rules concerning spouses, minor children, devise restrictions, creditor protection, and who receives title. Families should not assume that a house is “outside probate” or that the will alone controls it. A court order determining homestead status is often requested to establish the beneficiaries’ title clearly.

What to Do Before Moving or Spending Assets

Do not distribute, sell, retitle, or spend estate property simply because family members agree. First, secure the property and collect the original will, certified death certificates, deeds, account statements, beneficiary records, titles, tax documents, funeral expenses, and known bills. Keep estate funds separate from personal funds and document every transaction.

An attorney can then create an asset-by-asset map showing what passes automatically, what may require a court order, what creditor issues exist, and which procedure is likely to be the most efficient.

Start With an Asset Review

Ramona S. Chaplin, P.A. helps Florida families evaluate wills, property titles, beneficiary designations, homestead, creditors, and available probate procedures. A focused review at the beginning can provide clarity and help prevent avoidable delays.

Sources

Florida Probate Code, Chapters 731-735, Florida Statutes: https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Index&Title_Request=XLII

Chapter 2026-57, Laws of Florida: https://laws.flrules.org/2026/57

Disclaimer: This article is for general informational purposes only and does not create an attorney-client relationship. Florida law and court procedures may change, and the result in any matter depends on its specific facts.