Probate

Probate arrives at a bad time. Someone has died, the family is grieving, and within a few weeks there are bills addressed to a person who is no longer here, a bank that will not release funds, and a house nobody can sell. The legal process that unlocks all of it is called probate, and most people meet it for the first time under exactly these conditions.

It helps to know what probate actually is. It is a court-supervised process that does three things: it confirms who has legal authority to act for the person who died, it makes sure legitimate debts and taxes are paid, and it transfers what is left to the people entitled to receive it. That is the whole purpose. Everything else is procedure built around those three aims.

Florida runs probate through the circuit court in the county where the decedent lived. In Palm Beach County that is the probate division in West Palm Beach, with Boca Raton estates handled there. The rules are the Florida Probate Code and the Florida Probate Rules, and they are more specific than most people expect. Deadlines are short, notices are mandatory, and a personal representative who skips a step can end up personally responsible for the consequences.

This page walks through the process in the order it actually happens, so you can see where you are and what comes next.

What probate is, in plain terms

When a person dies, their assets do not simply pass to whoever is named in the will. The will is a set of instructions, not a transfer document. Something has to give those instructions legal force, and that something is a court order.

Probate produces two things that matter practically. The first is an order admitting the will to probate, which establishes that this document, and not some earlier one, governs. The second is a document called Letters of Administration, which is the personal representative's proof of authority. Banks, title companies, brokerages and insurers will not deal with anyone who cannot produce it.

Until Letters issue, the estate is frozen in a very literal sense. Accounts stay closed, property cannot be sold, and the bills keep arriving. This is why the first weeks matter more than people assume.

When probate is not needed at all

Not every asset passes through probate, and some estates require no administration whatsoever. Assets that pass outside probate include:

• Jointly held property with right of survivorship. Title moves to the surviving owner automatically. In Florida, property held by a married couple as tenants by the entireties works the same way.
• Accounts with a named beneficiary. Life insurance, retirement accounts, annuities, and bank or brokerage accounts marked payable-on-death or transfer-on-death.
• Assets titled in a living trust. The trustee already holds legal title, so no court order is needed to act.
• Enhanced life estate deeds. Often called a lady bird deed, these pass Florida real property to a named remainderman at death.

If everything the person owned falls into one of those categories, there may be nothing to probate. If even one significant asset was held in their sole name with no beneficiary, probate is generally required to move it.

That last point catches families constantly. A trust was created and carefully drafted, but one brokerage account was never retitled into it. That single account can require a full administration on its own.

The types of administration in Florida

Florida offers several routes, and choosing the right one is the single biggest driver of how long and how expensive the process becomes.

1. Summary administration. A shortened process for smaller estates or where the death occurred long ago.
2. Formal administration. The standard, full process with a personal representative appointed by the court.
3. Disposition without administration. A narrow procedure for very small estates, essentially reimbursement of final expenses.
4. Ancillary administration. For a person who died domiciled in another state but owned Florida property.

The route is not always a free choice. Eligibility for summary administration is set by statute, and creditor exposure often makes formal administration the safer option even where the shorter route is technically available.

Summary administration

Summary administration is available in two situations. Either the value of the probate estate, excluding exempt property such as homestead, does not exceed $75,000, or the decedent died more than two years ago. The two-year path is useful because after two years, creditor claims are generally barred entirely.

The process is shorter because no personal representative is appointed. Instead the petition asks the court to order distribution directly to the beneficiaries. When it works, it can conclude in a matter of weeks rather than months.

The trade-off is protection. In summary administration, those who receive assets can remain exposed to creditor claims. If the estate has unknown or disputed debts, distributing quickly can create problems that arrive later, and by then the assets are gone.

Formal administration

Formal administration is the standard process, and most Florida estates use it. It begins with a petition to the circuit court, includes the appointment of a personal representative, and runs through creditor notice, inventory, payment of debts and expenses, distribution, and a final accounting before the file is closed.

It takes longer, but it produces finality. Creditors are cut off, distributions are made under court supervision, and the personal representative obtains a formal discharge that ends their exposure. For estates with real property, business interests, unclear debts or multiple beneficiaries, that finality is generally worth the additional time.

Florida also requires that the personal representative in a formal administration be represented by an attorney in most circumstances. The exception is where the personal representative is the sole interested person in the estate.

Disposition without administration

This is the narrowest route. It applies where the decedent left no real property and the non-exempt assets do not exceed the total of final funeral expenses and reasonable medical expenses from the last sixty days of illness.

In practice it functions as a reimbursement mechanism. A family member who paid for a funeral can apply to receive the small remaining assets to cover what they laid out. It is filed on a simple form and does not involve a personal representative.

Ancillary administration for out-of-state owners

South Florida sees a great deal of this. A person lives in New York, New Jersey or Ohio, keeps a condominium in Boca Raton or Delray Beach, and dies at home up north. Their home state handles the main estate, but the Florida real property is governed by Florida law and needs a Florida proceeding.

That proceeding is ancillary administration. It runs alongside the primary administration in the other state and deals only with the Florida assets. The out-of-state will is typically admitted based on authenticated copies from the other court, and a personal representative is appointed for the Florida property.

Families often assume the northern lawyer can handle it. They cannot transfer Florida real property without a Florida proceeding, and the discovery of this fact usually comes when a buyer's title company refuses to close.

Who can serve as personal representative

Florida has a residency restriction that surprises many families. A personal representative must either be a Florida resident, or, if not a resident, must be related to the decedent in one of the ways the statute allows: a spouse, a child, parent, sibling, grandparent, or a lineal descendant of any of those, or the spouse of such a relative.

A close friend who lives in Connecticut cannot serve. A named executor in an old out-of-state will may be legally disqualified in Florida even though the will names them clearly. When that happens, the court appoints an alternate, and if the will does not name one, the statutory order of preference applies.

Other disqualifications apply. A person convicted of a felony cannot serve, nor can someone mentally or physically unable to perform the duties, nor a minor.

Where there is no will, preference goes first to the surviving spouse, then to the person selected by a majority in interest of the heirs, then to the heir nearest in degree.

What the personal representative actually does

The role is a fiduciary one, which means the standard is not good intentions but loyalty and care. The personal representative acts for the estate and its beneficiaries and creditors, not for themselves, even when they are also a beneficiary.

The core duties are:

• Identify, gather and safeguard the estate's assets
• Obtain a tax identification number and open an estate account
• Give the required notices to beneficiaries and creditors
• Conduct a diligent search for reasonably ascertainable creditors
• File an inventory with the court
• Evaluate claims and pay valid ones in the statutory order of priority
• Maintain insurance and preserve property, including real estate
• File the decedent's final income tax return and any estate returns
• Keep complete records of every receipt and disbursement
• Distribute in accordance with the will or intestacy statute
• File a final accounting and petition for discharge

Two of these cause most of the trouble. Mixing estate money with personal money is a breach of duty even where no loss results and nothing was intended. And distributing before the creditor period closes can leave the personal representative personally liable for a claim that arrives afterwards.

Opening the estate

The first steps happen before the court is involved. Obtain multiple certified copies of the death certificate, usually six to ten, because every institution wants its own. Locate the original will, since Florida requires the original to be deposited with the clerk within ten days of learning of the death. Secure the property: change locks if necessary, confirm homeowners insurance remains in force and notify the carrier of the vacancy, and stop automatic payments that no longer serve a purpose.

Then the petition for administration is filed with the circuit court in the county of the decedent's domicile, together with the will, the death certificate, and an oath from the proposed personal representative. If the court is satisfied, it enters an order admitting the will and issues Letters of Administration.

From the moment Letters issue, the estate can function. Accounts can be opened, assets consolidated, and property listed for sale.

The notice of administration

Once appointed, the personal representative must serve a notice of administration on the surviving spouse, on beneficiaries, on the trustee of any revocable trust, and on anyone else entitled to receive it.

That notice starts a clock. An interested person who wants to challenge the validity of the will, the qualifications of the personal representative, the venue, or the court's jurisdiction generally has three months from service to file an objection. Miss it, and the objection is usually barred no matter how strong it might have been.

This is why the notice is more than a formality. It is the mechanism by which the estate becomes settled rather than perpetually open to challenge.

Creditors, and the clock that binds them

Florida's creditor rules are the part of probate most likely to catch a personal representative out.

The personal representative must publish a notice to creditors in a newspaper in the county, once a week for two consecutive weeks. Publication starts a three-month window in which unknown creditors must file their claims with the court.

Separately, the personal representative must conduct a diligent search for creditors who are reasonably ascertainable, and serve those creditors directly. A creditor served with notice has the later of three months from first publication or thirty days from service in which to file.

Claims filed after those periods are generally barred. And there is an outer limit: two years after death, claims are barred regardless of whether notice was ever published, with narrow exceptions.

Where a claim is filed, the personal representative may object. Once an objection is served, the creditor must file an independent lawsuit within thirty days or the claim is lost. That is a very short window, and it is frequently the reason a disputed debt simply disappears.

Debts are also paid in a statutory order of priority. Administration expenses and funeral costs come near the top, followed by certain taxes and medical expenses of the final illness, with general unsecured creditors last. If the estate is insolvent, paying a lower-priority creditor in full before a higher one is a personal exposure for the representative.

The inventory and estate assets

Within sixty days of Letters issuing, the personal representative must file an inventory listing the estate's assets with their date-of-death values. Real property is described and valued, accounts are listed by institution, and tangible personal property of significant value is itemised.

Date-of-death value matters beyond the court file. It establishes the stepped-up basis that beneficiaries will use for capital gains purposes when they eventually sell, which can be worth far more than the cost of a formal appraisal.

The inventory is served on beneficiaries, and a beneficiary who believes an asset is missing or misvalued can raise it. This is often where disputes first surface.

Homestead: the Florida exception

Florida's homestead protection is constitutional, unusually strong, and a frequent source of confusion in probate.

Homestead property is generally protected from the decedent's creditors and passes to the surviving spouse and descendants outside the ordinary estate. It is not, as a rule, an asset the personal representative can sell to pay debts.

The Constitution also restricts how homestead can be devised. If the decedent was survived by a spouse or a minor child, a will that leaves the homestead to someone else may be ineffective as to that property. Where there is a surviving spouse and descendants, the spouse takes a life estate with a remainder to the descendants, unless the spouse elects instead to take an undivided one-half interest as tenants in common, an election with a strict deadline.

Because homestead status affects creditor exposure, taxes and who ultimately owns the house, a petition to determine homestead status is a routine and important part of many Florida administrations.

Exempt property and family allowance

Beyond homestead, Florida sets aside certain property for the immediate family, protected from most creditors.

A surviving spouse, or children if there is no spouse, may claim exempt property: household furniture, furnishings and appliances up to a statutory value, two motor vehicles used regularly by the decedent or immediate family, certain qualified tuition programs, and specified teacher and school-administrator death benefits.

The court may also award a family allowance, up to a statutory cap, for the maintenance of the surviving spouse and lineal heirs the decedent was supporting, paid while the estate is being administered. For a family whose income has just stopped, that allowance can matter a great deal.

Both have deadlines. The claim for exempt property must generally be filed within four months of the notice of administration, or within forty days of the resolution of a will contest.

The surviving spouse and the elective share

Florida does not permit a spouse to be disinherited outright. A surviving spouse may elect to take a share of the elective estate, thirty percent, instead of what the will provides.

The elective estate is defined broadly, and deliberately so. It reaches beyond the probate assets to include property in revocable trusts, certain jointly held property, payable-on-death accounts, some retirement benefits, the cash surrender value of life insurance on the decedent's life, and certain transfers made within a year of death. The breadth of the definition is what prevents the right from being defeated by simply moving assets out of the probate estate.

The election must be filed within the earlier of six months after service of the notice of administration or two years after the date of death.

Florida also protects a spouse or child omitted from a will. A spouse married after the will was executed, or a child born or adopted afterwards, may be entitled to a share as a pretermitted spouse or child unless the will indicates the omission was intentional.

Dying without a will

If there is no valid will, Florida's intestacy statute decides who inherits. It is a fixed formula, and it does not consider relationships, need or intention.

• Surviving spouse and no descendants: the spouse takes everything.
• Surviving spouse, and all descendants are shared with that spouse, and the spouse has no other descendants: the spouse takes everything.
• Surviving spouse with descendants from another relationship, on either side: the spouse takes half and the descendants share the other half.
• No spouse: descendants take, per stirpes, meaning by branch of the family.
• No spouse or descendants: to parents, then siblings and their descendants, then to more distant relatives under the statute.

Two consequences catch families. Unmarried partners receive nothing, regardless of how long the relationship lasted. And stepchildren who were never adopted receive nothing, even where they were raised as the decedent's own.

Taxes and the final returns

Florida has no state estate tax and no state income tax, which removes a layer that exists in most other states. Federal obligations remain.

The decedent's final individual income tax return covers the period from 1 January through the date of death and is due on the usual schedule. If the estate earns income during administration, from rent, interest, dividends or the sale of assets, the estate itself may need to file a fiduciary income tax return.

The federal estate tax return applies only to estates above the federal exemption, which is high enough that most estates never file one. Where a surviving spouse may benefit from portability of the deceased spouse's unused exemption, filing can be worthwhile even for an estate below the threshold, since portability must be elected on a timely filed return.

The personal representative should not distribute until tax exposure is understood. Distributing an estate and then discovering a tax liability is a problem with no easy remedy.

What probate costs

Florida statutes provide guidelines rather than fixed prices. For both attorney's fees and personal representative compensation, three percent of the first million dollars of estate value is presumed reasonable, with lower percentages applying above that, and additional compensation available for extraordinary services such as selling real property, handling litigation or running a business.

These are guidelines, not requirements. Fee arrangements can be made on other terms, and for many straightforward estates a different basis is more appropriate than a percentage. What matters is that the arrangement is agreed and understood at the outset rather than discovered at the end.

Other costs include the court filing fee, publication of the notice to creditors, certified copies, appraisals where needed, accounting fees and any bond premium. Fees and costs of administration are paid from the estate, not by the personal representative personally.

How long it takes

A straightforward formal administration in Florida usually runs six to nine months. The three-month creditor period sets a floor that cannot be compressed, and everything else builds around it.

A realistic sequence looks like this. Weeks one to four: gather documents, secure property, file the petition. Weeks four to eight: Letters issue, estate account opened, notice of administration served, notice to creditors published. Months two to five: creditor window runs, inventory filed, assets consolidated, real property listed if it is being sold. Months five to seven: claims resolved, tax returns filed, expenses paid. Months seven to nine: distributions made, final accounting filed, discharge entered.

Estates take longer when real property has to sell before distribution, when a beneficiary cannot be located, when there is a business interest to value, when claims are disputed, or when someone contests the will. Summary administration, where it fits, can conclude in four to eight weeks.

When the estate is contested

Most estates settle without a fight. Some do not. Disputes generally take one of a few shapes: a challenge to the validity of the will on grounds of capacity, undue influence or improper execution; a claim that the personal representative has breached their duties or is not accounting properly; a disagreement over what belongs to the estate at all; or a fight over homestead or the elective share.

These matters are handled in the same probate proceeding, and the deadlines are unforgiving. The three-month period after the notice of administration is the one that most often decides whether a challenge is heard on its merits or dismissed without one.

Where a dispute is developing, it is better to know early. The options available in month one are far wider than those available in month six. Bendel Law handles these matters as estate litigation, and the considerations there are set out in more detail.

Closing the estate

Once debts, expenses and taxes are paid and the creditor period has closed, the estate can be distributed. The personal representative prepares a final accounting showing every receipt and disbursement, serves it on the beneficiaries along with a plan of distribution, and petitions for discharge.

Beneficiaries may consent, which shortens the process considerably, or object, which does not. Once distributions are made and receipts obtained, the court enters an order of discharge. That order ends the personal representative's authority and, importantly, their liability.

Obtaining the discharge matters. An administration left informally unfinished leaves the representative exposed indefinitely, and the file has to be reopened before anything further can be done.

Where estates go wrong

The recurring problems are consistent enough to list.

• Distributing too early. Handing out assets before the creditor period closes, then facing a claim with nothing left to pay it.
• Skipping the diligent search. Publication alone does not bind a creditor who could reasonably have been found.
• Using personal accounts. Every estate dollar should move through the estate account, and every movement should be documented.
• Letting insurance lapse. A vacant Florida house with no coverage, in hurricane season, is a serious risk to the estate.
• Choosing summary administration to save money. Where creditors are uncertain, the shorter route transfers the risk to the beneficiaries.
• Missing the homestead petition. Selling a house without determining its homestead status can create a title problem years later.
• Informal family arrangements. Agreements not reflected in the court file tend to unravel when relationships change.
• Waiting. Assets deteriorate, memories fade, and deadlines pass while everyone assumes someone else is handling it.

What to do next

If someone has recently died and you think probate may be needed, the useful first step is a short conversation about what they owned and how it was titled. That usually determines the whole shape of the process, including whether a court proceeding is needed at all.

Bendel Law handles Florida probate for families in Boca Raton and throughout the state, including ancillary administration for out-of-state families who own Florida property. That includes advising the personal representative on their duties, preparing and filing the petitions, managing creditor notice and claims, resolving homestead and exempt property questions, and carrying the estate through to distribution and discharge.

This page is general information about Florida probate. It is not legal advice for your situation, statutory amounts and deadlines change, outcomes depend on the particular facts of an estate, and reading this page does not create an attorney-client relationship.