One of the first things a personal representative must do is separate probate assets from assets that pass outside of probate. A will controls only the property that lacks another transfer mechanism. Trusts, beneficiary designations, joint titling, and Lady Bird deeds all move assets without court involvement. Our South Florida firm helps executors and trustees understand which Florida instruments are valid and which assets actually flow through the estate they are administering.
What Makes a Florida Will Valid
For a will to be admitted to probate in Florida, it must meet the execution requirements of Section 732.502. The testator must sign at the end of the document, and the signing must be witnessed by two competent witnesses who also sign in the presence of the testator and of each other. Florida recognizes electronic wills under specific statutory conditions, but it does not recognize handwritten (holographic) wills that lack the required witnesses, even if valid where written. A personal representative should never assume an informal document qualifies; it must be proven up.
Self-Proving Wills and Probate Proof
A will accompanied by a self-proving affidavit under Section 732.503 can be admitted without locating the witnesses later, which speeds administration. When a will is not self-proved, the personal representative may need an oath of a witness or other proof. We help executors gather the proof a Florida court requires before Letters are issued.
Revocable Trusts Under Chapter 736
Many South Florida residents hold assets in a revocable living trust governed by the Florida Trust Code, Chapter 736. Assets titled in the trust generally avoid probate and pass under the trust terms managed by the successor trustee. Note, however, that a trust does not escape every probate-related duty: under Section 736.05053, the trust may be liable for the expenses of administration and enforceable claims of the decedent’s creditors when the probate estate is insufficient. Trustees and personal representatives often must coordinate.
Lady Bird Deeds and Other Non-Probate Transfers
Florida recognizes the enhanced life estate deed, commonly called a Lady Bird deed, which lets an owner keep full control during life while the property passes automatically to a named remainderman at death without probate. Similarly, payable-on-death accounts, transfer-on-death securities, jointly held property with survivorship, and life insurance with named beneficiaries all pass outside the estate. A personal representative who tries to administer these assets, or who counts them in the probate estate, can make a costly error.
Why the Sorting Matters
Mixing probate and non-probate assets distorts the inventory, the creditor analysis, and the elective share calculation. Sorting correctly at the outset protects the personal representative and ensures beneficiaries receive what they are actually entitled to.
Consult a Florida Attorney
Validity of a will, the reach of a trust, and the effect of a deed are technical questions with real consequences. This page is general information, not legal advice. Before relying on any document, consult a licensed Florida attorney about your specific estate. Contact our South Florida office for help mapping the assets you must administer.
For more on our Florida practice, see our overview of probate in Palm Beach. Morgan Legal Group's affiliated New York office also handles New York elder law.