Our firm handles the estate-planning side. We do not practice immigration law, so for the immigration questions raised below we routinely refer clients to a Miami immigration attorney and coordinate the two plans so they do not work against each other.

The non-citizen spouse problem: marital deduction and QDOTs

Under federal law, a U.S. citizen can leave an unlimited amount to a surviving spouse free of federal estate tax through the unlimited marital deduction. That deduction generally does not apply when the surviving spouse is not a U.S. citizen. The concern is that a non-citizen spouse could inherit and then leave the country before the tax is ever assessed.

The standard solution is a Qualified Domestic Trust, or QDOT. Property passing to a non-citizen spouse is directed into a QDOT that meets specific federal requirements, including a U.S. trustee with authority to withhold estate tax on distributions. A QDOT lets a couple defer the tax that would otherwise come due, and it can be drafted into a Florida revocable trust under Chapter 736. If your surviving spouse later naturalizes, the analysis changes again — another reason to revisit the plan whenever an immigration milestone is reached.

Non-resident aliens and U.S. situs assets

Status matters even more for clients who are non-resident aliens for estate-tax purposes. A non-resident alien is generally taxed only on U.S.-situs assets, but the exemption available to them is dramatically smaller than the one available to citizens and domiciliaries. A snowbird who owns a Florida condo, a brokerage account, or shares in a U.S. company can be exposed to federal estate tax on those assets even if they never intended to become a U.S. resident. The fix is usually structural — holding title carefully and coordinating with counsel before assets are acquired, not after.

Homestead, wills, and how status reaches your heirs

Florida’s homestead protections and intestacy rules apply regardless of citizenship, which is good news: your immigration status does not, by itself, disqualify you or your heirs from inheriting Florida property. A will executed in Florida must still meet the formalities of section 732.502 — signed by the testator and witnessed by two people — to be valid, and a non-citizen can serve as a beneficiary and, in most cases, as a personal representative if they are a close relative.

What status does affect is the practical side: a beneficiary living abroad, an heir with a pending case, or a relative the family hopes to sponsor. Inheritance can intersect with public-benefits and admissibility questions, so when a beneficiary’s immigration situation is unsettled, we coordinate the estate plan with their immigration counsel. Clients pursuing family-based immigration for a spouse, parent, or child should make sure the estate plan and the immigration petition tell a consistent story.

Guardianship designations for children of immigrants

For parents in mixed-status households, the most urgent document is often the guardianship designation for minor children. If a parent is detained, deported, or simply unable to act, a Florida estate plan can name a guardian and a standby guardian so your children are cared for by someone you chose rather than someone a court selects. Pairing this with a written caregiver authorization gives a trusted adult the ability to make day-to-day and medical decisions without delay.

Powers of attorney when you travel for visa matters

Immigration cases frequently require travel abroad — a consular interview, document gathering, or an extended stay while a case processes. A durable power of attorney and a designation of health care surrogate ensure that someone in Florida can pay your mortgage, manage your accounts, and make medical decisions while you are out of the country. Without them, your family may face a costly guardianship proceeding precisely when you are least able to step in.

Why newcomers to Florida need both plans

An immigration case secures your right to be here. An estate plan secures what happens to your family and your property once you are. The two are deeply connected — a QDOT, a guardianship designation, or a beneficiary’s pending case can each turn on the other. We prepare the Florida estate documents and work alongside your immigration counsel so the plans reinforce each other. If you are new to South Florida and have only addressed one side, it is worth a conversation to make sure the other is not leaving your family exposed.

If you are an executor or personal representative in South Florida, this is not an academic question. You have a fiduciary duty to the estate and its beneficiaries, and that duty includes recognizing when something about a will, a deed, or a beneficiary designation does not add up. What follows is a practical, attorney’s-eye view of how these claims actually work in Florida courts.

What Counts as Probate Fraud in Florida

Fraud in the probate context is not a single thing. Florida law generally splits it into two categories, and the distinction matters because it changes what you have to prove.

• Fraud in the execution. The testator was deceived about the nature of the document itself. Picture an elderly man told he is signing a power of attorney when he is in fact signing a new will. He never intended to make a testamentary document at all.
• Fraud in the inducement. The testator knew he was signing a will but was lied to about facts that shaped his decisions—for example, being falsely told that a son had died, or that a daughter had stolen from him, prompting him to disinherit her.

Separate from these is forgery, which is its own beast: a signature that the decedent never made, or a will page swapped after signing. Forgery claims often turn on forensic document examiners and the testimony of the two attesting witnesses that Florida requires under section 732.502.

To prevail on a fraud claim, the challenger must show a false statement of material fact, knowledge that it was false, intent to deceive, the testator’s reliance, and a will that would have read differently but for the deception. That is a demanding chain, and courts do not infer it lightly.

Undue Influence: Florida’s Real Workhorse Claim

In practice, undue influence is litigated far more often than outright fraud, because it does not require proving anyone forged anything. It requires proving that someone overbore the testator’s free agency at the moment the will was made.

The seminal Florida case is In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), and its framework still governs. The Florida Supreme Court identified a set of factors—often called the Carpenter factors—that courts weigh to decide whether undue influence existed. They include:

1. Presence of the beneficiary at the execution of the will;
2. Presence of the beneficiary when the testator expressed a desire to make a will;
3. Recommendation by the beneficiary of an attorney to draft the will;
4. Knowledge of the contents of the will by the beneficiary before execution;
5. Giving instructions to the drafting attorney by the beneficiary;
6. Securing witnesses to the will by the beneficiary; and
7. Safekeeping of the will by the beneficiary after execution.

No single factor is decisive. A court looks at the totality. A nephew who drove his aunt to the lawyer once is not an influencer; a caregiver who picked the lawyer, sat in the meeting, told the lawyer what to write, rounded up the witnesses, and then locked the signed will in her own safe is a very different story.

The Active Procurement and Burden-Shifting Rule

Here is the part that changes cases. Under Florida law, codified at section 733.107(2), a presumption of undue influence arises when a challenger shows three things: (1) a substantial beneficiary under the will, (2) who occupied a confidential or fiduciary relationship with the testator, and (3) who was active in procuring the will. Once that presumption attaches, the burden of proof shifts to the person defending the will to disprove undue influence.

That burden shift is enormously powerful. It is why a beneficiary who was also the testator’s accountant, agent under a power of attorney, or live-in caregiver is so often the focus of litigation. A confidential relationship is presumed in many family and care-giving arrangements, so the fight usually centers on whether the beneficiary was “active in procurement”—which is where the Carpenter factors do their work.

Red Flags Every Personal Representative Should Notice

You do not need to be a litigator to spot trouble. As the person administering the estate, you are often the first to see the documentation, and certain patterns deserve a hard second look:

• A will or codicil signed weeks or days before death, especially during a hospitalization or hospice stay.
• A dramatic, last-minute change that favors a recent acquaintance, a new spouse, a caregiver, or one child to the exclusion of others.
• A drafting attorney chosen and paid by the chief beneficiary rather than the testator.
• Diagnoses of dementia, Alzheimer’s, or heavy medication around the signing date—evidence relevant to both undue influence and the separate ground of lack of testamentary capacity.
• Beneficiary designations on bank accounts, brokerage accounts, or annuities changed at the same time, often outside probate entirely.
• Isolation—a beneficiary who controlled the testator’s phone, mail, visitors, or finances.

None of these is proof. All of them are reasons to slow down, preserve records, and get advice before you distribute a dime. Estate administration carries plenty of , and a contested will is among the most consequential.

How These Claims Are Brought in a Florida Probate

The procedural vehicle is usually a will contest. An “interested person”—typically an heir who would inherit under a prior will or by intestacy—files a petition to revoke probate under section 733.109, or formally objects to the will before it is admitted. Florida runs on tight deadlines here.

If a personal representative serves a formal Notice of Administration under section 733.212, an interested person generally has three months from service to object to the will’s validity, including on grounds of fraud or undue influence. Miss that window and the objection is barred. This is precisely why personal representatives should serve notice promptly and document service carefully: it starts the clock that ultimately gives the estate finality.

Discovery in these cases tends to be invasive. Expect medical records, the drafting attorney’s file (Florida recognizes a testamentary exception to attorney-client privilege after death under section 90.502), bank statements, caregiver logs, and depositions of the witnesses and the lawyer. Cases frequently turn on the testimony of the supervising attorney about what they observed of the testator’s lucidity and independence.

The Personal Representative’s Fiduciary Tightrope

If you are the named personal representative under the challenged will, your position is genuinely awkward. You generally have a duty to defend the will that nominated you—but not at all costs, and never if defending it means knowingly supporting a fraudulent instrument. If you have a personal stake in the outcome, or if you yourself are accused of overreaching, you may need to step aside or seek court instruction.

Practical guardrails for a fiduciary facing a contest:

• Preserve everything—originals, drafts, emails, medical and financial records—the moment a dispute looks possible.
• Do not make distributions while a contest is pending or threatened.
• Stay neutral on facts you cannot vouch for; your job is the estate, not any one beneficiary’s narrative.
• Get independent counsel. Estate funds may, with court approval, pay to defend a will brought in good faith, but the rules on fee-shifting and surcharge are unforgiving.

For a deeper look at the executor’s role and the formal steps of administration, our overview of is a useful companion, and the same fiduciary principles travel across state lines. If your matter sits in South Florida, our handles contested administrations regularly. You can also review our resources on Florida probate and on drafting valid wills.

Remedies When Fraud or Undue Influence Is Proven

If a court finds a will was procured by fraud or undue influence, it will not enforce that instrument. Depending on the facts, the court may admit a prior valid will instead, or the estate may pass by Florida’s intestacy statutes (Chapter 732). Florida’s slayer-style and related principles also bar a wrongdoer from profiting: section 732.802 prevents a killer from inheriting, and courts have broad equitable power to impose a constructive trust to claw back assets that an influencer wrongfully obtained, including non-probate transfers.

One important wrinkle: a no-contest (in terrorem) clause will not save a fraudulent will. Florida flatly refuses to enforce no-contest clauses under section 732.517, so a beneficiary cannot be penalized for bringing a good-faith challenge. That public-policy choice exists precisely to encourage scrutiny of suspicious wills.

Why Early Legal Advice Pays for Itself

Whether you suspect a loved one’s will was the product of manipulation, or you are the personal representative caught defending one, the cost of waiting is high. Evidence disappears, memories fade, deadlines run, and assets get distributed in ways that are hard to reverse. The factors are nuanced, the burden-shifting rules are technical, and the deadlines are short. An experienced Florida probate attorney can evaluate the Carpenter factors against your facts, advise whether the presumption of undue influence is in play, and chart a course that protects either the estate or the rightful heirs.

If you have questions about a Florida estate that does not feel right, contact our office to discuss your situation confidentially.

Frequently Asked Questions

What is the difference between probate fraud and undue influence in Florida?

Probate fraud involves deception of the testator or the court, such as forged signatures, lies about material facts, or concealed assets that change who inherits. Undue influence does not require any lie; it occurs when someone in a confidential relationship overpowers a vulnerable testator’s free will so the will reflects the influencer’s wishes. Both can void a will under Florida Statutes section 732.5165, but they require different proof.

Who has the burden of proof in a Florida undue influence case?

The challenger initially carries the burden. But under Florida Statutes section 733.107(2), if a substantial beneficiary who held a confidential or fiduciary relationship with the testator was active in procuring the will, a presumption of undue influence arises and the burden shifts to the person defending the will to disprove it. Courts apply the Carpenter factors from In re Estate of Carpenter to assess active procurement.

How long do I have to challenge a will for fraud or undue influence in Florida?

If the personal representative serves a formal Notice of Administration under section 733.212, an interested person generally has three months from the date of service to object to the will’s validity, including on grounds of fraud or undue influence. Missing that deadline usually bars the objection, so it is critical to act quickly and consult an attorney.

Can a no-contest clause stop me from challenging a suspicious will in Florida?

No. Florida Statutes section 732.517 makes no-contest (in terrorem) clauses unenforceable. A beneficiary cannot be disinherited or penalized for bringing a good-faith challenge to a will, which is a deliberate public-policy choice that encourages scrutiny of suspicious instruments.

What happens to the estate if a court finds the will was the product of undue influence?

The court will refuse to enforce that will. It may admit a prior valid will instead, or the estate may pass under Florida’s intestacy statutes in Chapter 732. Courts can also impose a constructive trust to recover assets an influencer wrongfully obtained, including non-probate transfers like beneficiary designations.

That last sentence is the part most people learn the hard way. A surviving spouse is grieving, the house is in someone else’s name, the bank account is frozen, and a relative or a lawyer hands them a stack of papers with words like “Notice of Administration” printed across the top. The instinct is to set the papers aside until things calm down. In Florida, that instinct can cost you tens of thousands of dollars. Below is a practical map of when you have to move, what you are entitled to, and how the role of personal representative changes the calculus.

The surviving spouse wears two hats: heir and, often, personal representative

Florida law gives a surviving spouse a privileged position in two distinct ways. First, the spouse is usually first in line to serve as personal representative (Florida’s term for what other states call an executor or administrator) under Florida Statutes section 733.301. Second, the spouse holds a bundle of substantive rights as a beneficiary or claimant against the estate, regardless of who actually administers it.

These two roles can pull in different directions. As personal representative, you owe fiduciary duties to all beneficiaries and creditors. As a surviving spouse claiming an elective share or family allowance, you are asserting personal rights that may reduce what other beneficiaries receive. It is entirely possible, and common, for one person to occupy both seats at once. When that happens, the smart move is to separate the decisions: act in the estate’s interest when administering, and protect your own statutory rights as a claimant, ideally with independent advice.

Who has priority to be appointed

If there is a valid will, the person named in it has first priority. Absent a controlling nomination, the surviving spouse has priority to be appointed personal representative in a testate estate, followed by the beneficiary selected by a majority in interest. In an intestate estate (no will), the surviving spouse again comes first. Priority is not the same as obligation. You can decline to serve and let another qualified person handle the day-to-day work while you still pursue your spousal rights.

The deadlines that actually matter for a surviving spouse

Most Florida probate rights for a spouse are governed by deadlines, and the deadlines are unforgiving. Here are the ones a surviving spouse cannot afford to miss.

• Elective share election — 6 months / 2 years. Under Florida Statutes section 732.2135, the election to take the elective share must be filed by the earlier of (a) six months after service of the notice of administration, or (b) two years after the decedent’s death. The deadline can be extended in limited circumstances, but you should never count on an extension.
• Petition to determine homestead status. Homestead does not pass through probate the way ordinary assets do, and getting a court order confirming its protected character is something a spouse typically wants done promptly so title can be cleared.
• Family allowance and exempt property. The claim for exempt property under section 732.402 must be filed on or before the later of the date that is four months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission, or contest of the will. Miss it and the right is deemed waived.
• Objections to the will or to the personal representative. An interested person served with notice of administration generally has three months from that service to object to the validity of the will, the venue, or the jurisdiction of the court.

Notice the recurring trigger: service of the notice of administration. That single document starts several clocks at once. If you are the surviving spouse, the day you are served is the day to call a Florida probate attorney, not the day to file the papers in a drawer.

The elective share: Florida’s promise that a spouse cannot be disinherited

Florida does not allow one spouse to cut the other out entirely. The elective share under Florida Statutes section 732.201 entitles a surviving spouse to 30% of the “elective estate,” a figure that reaches well beyond the probate estate. The elective estate is intentionally broad. It captures assets that pass outside of probate and that a spouse might otherwise think are untouchable.

The elective estate can include, among other things, probate assets, certain revocable trust property, jointly held accounts, pay-on-death and transfer-on-death accounts, the net cash surrender value of life insurance owned by the decedent on the decedent’s own life, and some property transferred within one year of death. The breadth is the point: Florida built the elective share to defeat the classic “I’ll just put everything in a trust or a joint account so my spouse gets nothing” maneuver.

When the elective share makes sense is a judgment call. If you are already the primary beneficiary under the will or trust, electing may give you less than simply taking what was left to you. If you were minimized or omitted, the 30% floor can be transformative. This is exactly the kind of math that rewards getting numbers on paper before the six-month clock runs.

The elective share can be waived

Spouses frequently waive the elective share, often without remembering they did so. A valid prenuptial or postnuptial agreement, or a marital settlement, can extinguish the right entirely. Before assuming you have a claim, the agreements signed during the marriage need to be read carefully. A waiver that does not meet Florida’s disclosure and execution requirements may be vulnerable, but that is a fight, not a formality.

Florida homestead: protection that does not pass through the will

Homestead is where many surviving spouses get blindsided. Florida’s constitutional homestead protections restrict how a person can devise the family residence when survived by a spouse or minor child. If a homeowner tries to leave the homestead to someone other than the spouse, the devise can be invalid, and the surviving spouse generally takes a life estate with a remainder to the descendants — or, under section 732.401, the spouse may elect to take an undivided one-half interest as a tenant in common instead.

That election is itself deadline-driven: it must be made within six months of the decedent’s death and recorded as required by statute. The life-estate-versus-half-interest decision has real consequences for who pays taxes, insurance, and upkeep, and for whether the home can be sold. It is not a decision to make by intuition.

One more practical point. Because homestead passes outside probate, a surviving spouse often needs a separate petition to determine homestead status to clear title, even in a small or simple estate. Lenders and title companies will want that order before the spouse can refinance or sell.

Family allowance and exempt property: short-term cash and protected belongings

Probate is slow. While the estate is tied up, a surviving spouse and lineal heirs the decedent was supporting can ask for a family allowance under section 732.403 — up to $18,000, paid out of estate assets to cover living expenses during administration. It is not a loan and is not charged against the spouse’s eventual share.

Separately, exempt property under section 732.402 lets the spouse take certain assets free of most creditor claims: household furniture, furnishings, and appliances in the decedent’s usual residence up to a net value of $20,000, two motor vehicles meeting the statute’s criteria, qualified tuition program funds, and certain death benefits for teachers and school administrators. These items come “off the top,” before general distribution, but only if the claim is filed on time.

What a surviving spouse who is also the personal representative must do first

If you accept appointment, the early administrative steps matter. A disciplined first 90 days protects both the estate and your own rights.

1. Get appointed and obtain Letters of Administration. Without letters, banks and brokerages will not release information or funds.
2. Secure and inventory assets. Locate accounts, deeds, insurance policies, and digital assets. File the inventory within the time the rules require.
3. Serve the notice of administration and publish notice to creditors. This starts the creditor claim period — and, for you personally, the spousal-rights clocks. Calendar every deadline the day you serve.
4. Evaluate your own claims separately. Before distributing anything, decide whether to elect the elective share, claim homestead, and file for family allowance and exempt property. Do this with counsel who is advising you, not the estate.
5. Pay valid claims and taxes, then distribute. Improper early distribution can leave the personal representative personally exposed if creditors or the elective share later eat into what was paid out.

For a deeper look at how the firm handles the personal-representative role end to end, see our overview of , and our practical guide to the Florida probate process for personal representatives.

How Florida compares — and why out-of-state assets complicate things

Surviving spouses often hold property in more than one state. A New York condo, a Florida homestead, a brokerage account titled in another jurisdiction — each can require its own proceeding. Florida’s elective share and homestead rules are unusually protective; other states structure spousal rights very differently. New York, for example, runs its surviving-spouse “right of election” and its probate proceedings under its own statutes and timelines, which do not mirror Florida’s. If your late spouse owned real property up north, you may need an in addition to the Florida administration, and it helps to understand before you decide how to coordinate the two estates.

Coordinating ancillary administration across states is one of the most common ways deadlines slip. Each state’s clock runs independently. A spouse focused on the Florida elective share can easily overlook a parallel election window in another jurisdiction.

Common mistakes that cost surviving spouses their rights

• Treating the notice of administration as junk mail. It is the single most important document for your deadlines.
• Assuming joint accounts and trusts are off-limits. The elective estate reaches many non-probate assets.
• Selling or refinancing the home before homestead status is determined. Title problems surface at the worst time.
• Distributing estate assets too early as personal representative. Personal liability follows.
• Forgetting a signed prenuptial agreement waived the elective share. Read the marital agreements first.

If you are a surviving spouse trying to decide whether to serve as personal representative, whether to elect against the will, or how to protect the family home, the safest path is to map every deadline at the outset. You can review your options and the documents that govern them, and if you are ready to talk specifics, our Florida probate attorneys can walk through the numbers with you. For estate-planning questions raised by the loss — updating your own will and estate plan — those conversations are best had once the immediate probate steps are under control.

The bottom line

A surviving spouse in Florida is not a passive bystander in probate. You hold some of the strongest rights the state recognizes — the elective share, homestead, family allowance, and exempt property — but most of them must be claimed, in writing, within months of being served. Act early, separate your personal claims from your fiduciary duties if you also serve as personal representative, and get the deadlines on a calendar before anything else. The law is generous to surviving spouses who move in time and quiet toward those who wait.

Frequently Asked Questions

How long does a surviving spouse have to file for the elective share in Florida?

Under Florida Statutes section 732.2135, the election must be filed by the earlier of six months after service of the notice of administration or two years after the decedent’s death. Limited extensions exist, but you should treat the six-month window as firm and consult a probate attorney as soon as you are served.

Can a surviving spouse be completely disinherited in Florida?

No. Florida’s elective share guarantees a surviving spouse 30% of the broad ‘elective estate,’ which includes many non-probate assets like certain trust property, joint accounts, and life insurance. The main way this right disappears is through a valid prenuptial or postnuptial agreement that meets Florida’s disclosure and execution requirements.

What happens to the family home if my spouse left it to someone else?

Florida’s homestead protections generally override such a devise when there is a surviving spouse. The spouse typically receives a life estate with a remainder to the descendants, or may elect within six months of death to take an undivided one-half interest as a tenant in common under section 732.401. A petition to determine homestead status is often needed to clear title.

Should a surviving spouse serve as the personal representative?

The spouse usually has first priority to be appointed, but serving is optional. Serving gives you control over administration but imposes fiduciary duties to all beneficiaries and creditors, which can conflict with your personal spousal claims. Many spouses serve while getting independent advice on their own rights; others decline and let another qualified person administer.

What immediate cash help is available while the estate is in probate?

A surviving spouse can request a family allowance of up to $18,000 under section 732.403 to cover living expenses during administration, and can claim exempt property under section 732.402, including household furnishings up to $20,000 in net value and qualifying vehicles. The exempt property claim must be filed within the statutory deadline or it is waived.

If you’ve just been appointed to administer an estate in Miami-Dade, Broward, or Palm Beach County and the largest asset is a house or condo, this is probably the part of the job that keeps you up at night. It should command your attention, but it isn’t mysterious. Below is how an experienced Florida probate lawyer thinks through it.

Who Has the Authority to Sell?

Nothing happens until someone holds Letters of Administration. The Letters are the court’s written confirmation that you—the personal representative (Florida’s term for executor or administrator)—have legal power to act for the estate. A real estate agent will list a property on a handshake; a title company will not insure a sale without seeing your Letters.

Where that authority comes from matters. Under Florida Statutes section 733.613, a personal representative whose authority to sell real property is granted in the will may sell without a court order, following any directions the will gives. If the will is silent—or there is no will—the personal representative may still sell, but the statute contemplates a court order authorizing the sale and confirming the terms. Many South Florida probate judges want to see that order before closing even when the will arguably grants the power, because title underwriters are cautious.

That distinction drives your timeline. A well-drafted will with an explicit power of sale lets you move at market speed. A bare-bones will, or an intestate estate, usually means a petition, notice to interested persons, and a hearing before you can sign a deed that a buyer’s lender will accept.

Independent vs. Court-Confirmed Sales

Florida does not use the “confirmation hearing” auction process some other states require, but the practical reality is similar in two scenarios:

• Beneficiaries object. If an heir disputes the price, the buyer, or the necessity of selling, you’ll likely need a court order to proceed safely.
• Title risk exists. Even a “clean” estate sale can leave a personal representative exposed if a later challenge surfaces. A court order under section 733.613, or a sale made with the written joinder of all beneficiaries, gives the title company comfort and gives you cover.

Homestead: The Issue That Trips Up Almost Everyone

Florida’s homestead protections are unlike anything else in the country, and they reshape estate real estate sales completely. If the decedent’s primary residence qualified as homestead under Article X, Section 4 of the Florida Constitution, the property generally passes outside the probate estate—directly to the heirs by operation of law—and the personal representative usually has no authority to sell it as estate property at all.

This surprises families constantly. The house everyone assumes is “the main estate asset” may legally belong to the surviving spouse and lineal descendants the moment the owner died, free of most creditor claims. To sell it, you generally need a court order determining homestead status, and then the actual title-holders—not the personal representative in that capacity—convey the property.

Practical takeaways for a personal representative:

1. Determine early whether the property was the decedent’s homestead. Where did they vote, drive, and claim a homestead tax exemption?
2. If homestead applies, ask the court for an Order Determining Homestead Status before listing. Title companies will require it.
3. Identify every person who inherited an interest. A surviving spouse may hold a life estate or an elective share interest, with descendants holding remainders, depending on the facts and whether the spouse elected under section 732.401.

Skip this analysis and you can sign a contract you have no power to perform, then watch the deal collapse at the title commitment. Getting it right is exactly the kind of judgment a seasoned probate attorney brings; the sees homestead surprises in a large share of South Florida estates.

Clearing Debts, Liens, and Claims Before You Sell

A buyer is purchasing clean title, which means the estate’s obligations attached to the property must be addressed at or before closing. Common ones:

• Mortgages and HELOCs. These survive death and are paid from sale proceeds at closing.
• Property tax and association liens. Unpaid HOA or condo dues are aggressive in Florida and often must be brought current to deliver marketable title.
• Creditor claims against the estate. Florida’s creditor claim process runs on strict deadlines. The personal representative must publish a Notice to Creditors and serve known creditors; claims are generally barred if not filed within the statutory window under section 733.702, with an outer limit under the two-year nonclaim period of section 733.710.
• Medicaid estate recovery and federal tax liens. These can encumber the property and should be identified before you commit to a sale price.

Why does the claim period matter to a sale? Because if you distribute proceeds too early and a valid creditor surfaces, you can be personally liable. Many attorneys advise selling and holding net proceeds in the estate account until the creditor period closes, rather than rushing distributions the day after closing.

Pricing, Listing, and the Duty of Loyalty

A personal representative is a fiduciary. Every decision about the sale must serve the estate and its beneficiaries—not your convenience and certainly not your wallet. That fiduciary duty has teeth.

Concretely, that means:

• Get a credible valuation—an appraisal or a broker’s price opinion—and keep it in the file. If a beneficiary later complains the house sold too cheap, contemporaneous documentation is your best defense.
• Market the property openly. A quiet sale to your brother-in-law at a friendly price invites a breach-of-fiduciary-duty claim, even if the price was arguably fair.
• Avoid self-dealing. If you want to buy the property yourself, you generally need court approval and the informed consent of beneficiaries. Do not freelance this.
• Communicate. Many sale disputes are really communication failures. Beneficiaries who feel informed rarely sue.

These same dynamics—pressure to sell, disagreement among heirs, and a fiduciary on the hook—appear in every state. Morgan Legal’s overview of the is a useful primer on the friction points that turn routine administrations into contested ones.

The Contract and Closing Mechanics

Estate sales use modified paperwork. A standard residential contract assumes a living seller with full authority; an estate sale needs different signature blocks and disclosures.

How the contract differs

You’ll sign as “[Your Name], as Personal Representative of the Estate of [Decedent], deceased,” not personally. Florida’s disclosure regime still applies, but a personal representative who never lived in the home and lacks personal knowledge of defects is typically permitted to disclose that limited knowledge rather than warranting the property’s condition. Add reasonable contingencies for obtaining any required court order so you are not in breach if the judge’s calendar runs long.

What the title company will want

• Certified copies of the Letters of Administration, current and not expired.
• The order authorizing sale (section 733.613) or beneficiary joinders, where required.
• An Order Determining Homestead Status if the property is or may be homestead.
• Proof the creditor notice process was handled and that known liens will be paid at closing.
• A personal representative’s deed (rather than a warranty deed) conveying the estate’s interest.

At closing, net proceeds flow into the estate’s bank account—never your personal account. From there, distribution follows the order of payment in Florida Statutes section 733.707: administration costs, certain priority claims, taxes, and then beneficiaries, in statutory sequence.

When the Sale Becomes Contested

Real estate often becomes the battleground in estate disputes because it’s the asset everyone can see and value. Will contests, allegations that the decedent lacked capacity, or claims that a deed was procured by undue influence can freeze a sale for months. The mechanics of challenging the underlying will are jurisdiction-specific, but the strategy mirrors what Morgan Legal describes in its discussion of —and a pending contest will almost always require court involvement before any sale can close.

If you anticipate conflict, slow down and paper everything. A court-approved sale, even one that takes an extra sixty days, is far cheaper than litigation over a sale you pushed through unilaterally.

Practical Sequence for a South Florida Personal Representative

1. Open the estate and obtain Letters of Administration.
2. Confirm whether the property is homestead; get a determination order if needed.
3. Review the will for an express power of sale; if absent, plan to petition the court under section 733.613.
4. Order a valuation and identify all liens, mortgages, and the creditor-claim timeline.
5. List and market the property openly; negotiate at arm’s length.
6. Sign as personal representative with appropriate contingencies; coordinate the title company’s requirements.
7. Close, deposit proceeds into the estate account, and distribute only after the creditor period and the statutory payment order are satisfied.

None of this is reason to panic. Thousands of Florida estates sell real property every year without incident. The difference between a smooth sale and an expensive mess is almost always preparation—and knowing which steps you cannot improvise.

If you’re administering an estate that includes a home, condo, or investment property, consider speaking with a Florida probate attorney before you list. You can also review our guides on Florida probate administration and wills and estate planning, or contact our office to discuss your specific situation.

Frequently Asked Questions

Can a personal representative sell a house during Florida probate without a court order?

Sometimes. Under Florida Statutes section 733.613, if the will expressly grants the power to sell real property, the personal representative may sell without a separate court order, following the will’s directions. If the will is silent or the decedent died intestate, the personal representative generally needs a court order authorizing the sale, and title companies often require one even when the will arguably grants the power.

Why can't the estate sell the decedent's homestead property?

Florida’s constitutional homestead protections cause a qualifying primary residence to pass directly to heirs outside the probate estate, so the personal representative typically has no authority to sell it as estate property. To sell, the heirs usually need a court Order Determining Homestead Status, after which the actual title-holders convey the property.

What happens to the mortgage and liens when estate real estate is sold?

Mortgages, HELOCs, property tax liens, and unpaid HOA or condo dues generally must be paid at or before closing to deliver marketable title. They are satisfied from the sale proceeds. Outstanding creditor claims against the estate are handled under Florida’s claim deadlines in sections 733.702 and 733.710 before proceeds are distributed.

Can the personal representative buy the estate property themselves?

Not freely. A personal representative is a fiduciary and self-dealing creates a conflict of interest. Buying estate property yourself generally requires court approval and the informed, written consent of the beneficiaries. Without those safeguards, the purchase can be challenged as a breach of fiduciary duty.

How long does it take to sell a house during Florida probate?

It varies widely. With Letters of Administration in hand and an express power of sale in the will, the sale can move at near-market speed. Estates requiring a homestead determination, a court order authorizing the sale, or resolution of a will contest can take several additional months.

If you have just been appointed personal representative (Florida’s term for executor or administrator), the creditor process is where most of the real work and most of the real risk lives. Distributing to the family is the easy part. Getting there cleanly, without a creditor surfacing eighteen months later, is the job. This guide walks through how creditor claims and the Florida probate timeline actually fit together.

What a creditor claim is in a Florida estate

A creditor claim is a written statement of liability filed in the probate file demanding payment from the estate. It can be anything from a hospital bill or a credit card balance to a contractor’s unpaid invoice, a Medicaid recovery demand, or a personal loan from a relative. Under Florida law, a “claim” means a liability of the decedent, whether due or to become due, certain or contingent, and whether liquidated or not.

The controlling statutes live in Part VII of the Florida Probate Code, sections 733.701 through 733.710, Florida Statutes. Those sections tell the personal representative who must be notified, how long creditors have, and what happens when a deadline passes. They are not suggestions. Florida courts treat the creditor-claim deadlines as nonclaim provisions, which means a claim filed late is generally barred forever, with very narrow exceptions.

The two deadlines every personal representative must memorize

The single most important thing to understand about the Florida creditor timeline is that there are two different clocks running at the same time, and a creditor is barred only after the earlier of the two expires.

• The 3-month publication window. Under section 733.702, a claim is barred unless it is filed within 3 months after the first publication of the Notice to Creditors. This deadline applies to creditors the personal representative does not know about and reasonably could not discover.
• The 30-day served-notice window. For a creditor who is “reasonably ascertainable” and actually served with a copy of the Notice to Creditors, the deadline is the later of the 3-month period or 30 days after the date the notice was served on that specific creditor.

So a known creditor served on day 80 still gets a full 30 days from that service, which can run past the 3-month mark. An unknown creditor who only sees the newspaper publication is locked into the 3-month bar. This is why diligent service on known creditors matters so much: it starts the shorter 30-day clock for each one.

The outer limit: two years from death

Florida also imposes a hard cap in section 733.710. Two years after the date of death, claims against the estate are barred regardless of whether probate was ever opened, whether notice was published, or whether the creditor knew anything. This statute of repose is jurisdictional and is not subject to the usual extensions. It is the reason families sometimes wait out the two-year period on quiet estates, and it is the reason creditors who suspect a death should not sit on their rights.

Step by step: the personal representative’s creditor duties

Here is the sequence as it actually unfolds once the court issues Letters of Administration.

1. Publish the Notice to Creditors. Promptly after appointment, publish the notice once a week for two consecutive weeks in a newspaper of general circulation in the county where the estate is administered. The date of first publication starts the 3-month clock.
2. Conduct a diligent search for creditors. Section 733.2121 requires the personal representative to make a reasonably diligent search for creditors who are reasonably ascertainable. Review the decedent’s mail, bank statements, credit reports, and recurring bills. Courts have made clear that ignoring obvious sources does not make a creditor “unknown.”
3. Serve known and reasonably ascertainable creditors. Mail a copy of the Notice to Creditors to each one. This service triggers the 30-day clock for that creditor.
4. Wait out the claims period. Avoid distributing assets while claims can still come in. Premature distribution is one of the fastest ways a personal representative becomes personally liable.
5. Review each filed claim. Decide whether to pay it, negotiate it, or object to it.
6. Object in writing when appropriate. File and serve an objection. The creditor then has a limited window to file an independent lawsuit on the claim.
7. Pay valid claims in statutory priority order, then distribute the remainder.

Florida’s elective requirement to serve known creditors comes from due-process case law going back to the U.S. Supreme Court’s decision in Tulsa Professional Collection Services v. Pope, which held that publication alone is not enough for creditors the representative actually knows or can readily find. That principle is now baked into the Florida statutes.

Objecting to a creditor claim and the 30-day lawsuit window

Filing a claim does not mean a creditor gets paid. If the personal representative believes a claim is invalid, overstated, or unenforceable, the move is to file a written objection under section 733.705. Timing here is tight on both sides.

Once an objection is served, the creditor generally has 30 days to file an independent action (a separate lawsuit) to enforce the claim. If the creditor does nothing within that window, the claim is barred. This is a powerful tool, but it cuts both ways: a personal representative who blows the objection deadline can lose the right to contest a questionable debt. Disputes of this kind are a form of probate litigation, and they look a lot like the will and estate disputes that arise in other states; for a sense of how contested estate matters get fought out, see this overview of from Morgan Legal’s New York team.

Order of payment: who gets paid first

When estate assets are not enough to cover everything, Florida does not let the loudest or fastest creditor win. Section 733.707 sets a strict priority order. In simplified form, classes are paid in this sequence:

• Class 1: Costs and expenses of administration, including attorney and personal representative fees.
• Class 2: Reasonable funeral and burial expenses, up to the statutory cap.
• Class 3: Debts and taxes with federal preference, such as certain federal tax obligations.
• Class 4: Reasonable and necessary medical and hospital expenses of the last 60 days of the final illness.
• Class 5: Family allowance.
• Class 6: Arrearages from court-ordered child support.
• Class 7: Debts acquired after death by continuing the decedent’s business, to the extent of the business assets.
• Class 8: All other claims.

Within a class, if there is not enough to pay everyone in full, claims are paid pro rata. A personal representative who pays a lower-priority creditor before a higher-priority one, and then runs out of money, can be held personally responsible for the shortfall. This is one of those places where good intentions are not a defense.

Note one important point that surprises many families: the Florida homestead generally passes outside this scheme. Constitutionally protected homestead property is usually shielded from the claims of most creditors and does not become a general asset available to pay debts. The interaction between homestead, exempt property, and creditor claims is technical, and it is worth getting advice before you treat the house as part of the payable estate.

How creditor claims fit into the overall probate timeline

A typical formal administration in South Florida runs somewhere between six months and a year and a half, and the creditor period drives much of that. You cannot safely close an estate until the claims window has run and every filed claim has been paid, settled, objected to, or otherwise resolved. The 3-month publication clock, the 30-day served-creditor clock, and the 30-day objection-to-lawsuit clock are the gears that determine when distribution can finally happen.

Estates with no creditors, or only family creditors who waive their claims, can move faster. Estates with disputed medical bills, a Medicaid Estate Recovery demand, or a contested business debt can stall for a year or more. The decisions a personal representative makes in the first 60 days, especially around the diligent search and service, largely set how long the rest will take.

Because the rules differ meaningfully from state to state, it helps to see how another jurisdiction structures the same process. Florida’s probate framework, for instance, distinguishes formal administration from summary administration, much as New York separates its own procedures; Morgan Legal explains in a way that highlights how the path you choose changes the timeline. If your matter is centered in Florida, Morgan Legal’s handles these creditor and timeline issues directly.

Common mistakes that cost personal representatives

The same errors come up again and again, and each one has a real financial consequence.

• Distributing too early. Handing assets to beneficiaries before the claims period closes, then discovering a valid creditor, can leave you personally liable.
• Skipping the diligent search. Treating a known creditor as “unknown” to avoid serving them does not start the protective 30-day clock and exposes the estate to a longer fight.
• Missing the objection window. Letting a questionable claim sit unobjected can convert it into a debt you must pay.
• Paying out of order. Satisfying a friendly low-priority creditor ahead of a tax or administration expense violates section 733.707.
• Forgetting the two-year cap, or relying on it too soon. The repose period in 733.710 is powerful but absolute; it does not forgive a claim that was timely filed.

None of this is meant to scare a personal representative out of serving. Most estates resolve without drama. But the creditor process is one place where a single procedural slip turns into out-of-pocket exposure, so it deserves attention and, in most cases, counsel.

When to bring in a probate attorney

Florida requires representation by an attorney in most formal administrations, and the creditor stage is exactly why. A lawyer makes sure the Notice to Creditors is published correctly, that the diligent search holds up, that objections go out on time, and that payments follow the statutory order. If you are just getting started, our pages on Florida probate administration and wills and estate planning cover the surrounding pieces, and you can reach our team through the contact page to talk through your specific estate.

Handled well, the creditor period is a manageable, predictable phase of probate. Handled carelessly, it is where personal representatives get hurt. Knowing the deadlines, respecting the priority order, and documenting every step is how you protect both the estate and yourself.

Frequently Asked Questions

How long do creditors have to file a claim in Florida probate?

Creditors generally have 3 months from the first publication of the Notice to Creditors to file a claim. A creditor who is known and personally served gets the later of that 3-month period or 30 days from the date of service. Regardless of notice, all claims are barred two years after the date of death under section 733.710, Florida Statutes.

Does a personal representative have to find and notify creditors, or is publishing a notice enough?

Both. Section 733.2121 requires a diligent search for creditors who are reasonably ascertainable, and those creditors must be served directly with the Notice to Creditors. Publication alone only covers unknown creditors. Treating a known creditor as unknown can expose the estate and the personal representative to a longer fight and potential personal liability.

What happens if a creditor's claim is invalid or overstated?

The personal representative can file a written objection under section 733.705. Once the objection is served, the creditor usually has 30 days to file an independent lawsuit to enforce the claim. If the creditor does not sue within that window, the claim is barred. Missing the objection deadline, however, can force the estate to pay a questionable debt.

In what order are estate debts paid in Florida?

Section 733.707 sets eight priority classes, starting with administration costs and attorney fees, then funeral expenses, certain taxes, last-illness medical bills, family allowance, child support arrears, business debts, and finally all other claims. If money runs short within a class, claims are paid pro rata, and paying out of order can make the personal representative personally liable.

Can the family home be used to pay the decedent's creditors?

Usually not. Florida’s constitutional homestead protection generally shields the primary residence from most creditor claims, and it typically passes outside the probate estate to qualifying heirs. The interaction between homestead, exempt property, and creditor claims is technical, so a personal representative should get advice before treating the house as an asset available to pay debts.

If you have just been named personal representative — Florida’s term for an executor — that range probably feels frustratingly wide. It is. But once you understand which steps are fixed by statute and which depend on choices you and the court make along the way, the timeline stops looking like a black box. Below I walk through it the way I would for a client sitting across my desk in South Florida.

The two main types of Florida probate (and why type drives timing)

Before you can estimate how long anything will take, you have to know which procedural track the estate is on. Florida has two principal forms of probate, and the gap between them is enormous.

Summary administration: weeks, not months

Summary administration is Florida’s streamlined path for smaller or older estates. Under Florida Statutes § 735.201, an estate qualifies when the value of the property subject to administration (excluding exempt property such as the homestead) does not exceed $75,000, or when the decedent has been dead for more than two years — regardless of size. Note that the value threshold is scheduled to rise to $150,000 on July 1, 2026.

Because there is no appointed personal representative actively managing assets over time, summary administration can conclude in anywhere from two weeks to a couple of months once the petition is filed. There is no extended creditor period to wait out in the same way. For many families with a modest bank account and a homestead, this is the fastest, cheapest route.

Formal administration: the full timeline

Formal administration is what most people picture when they hear “probate.” It applies to estates above the summary threshold and to any estate that needs an empowered personal representative to sell property, run a business, pursue a lawsuit, or sort out contested claims. This is where the nine-to-eighteen-month range lives, and the rest of this article focuses on it.

The Florida probate timeline, step by step

Here is the typical sequence for a formal administration, with realistic durations. Your county’s clerk and judge set the local pace, and South Florida’s high-volume circuits — Miami-Dade, Broward, and Palm Beach — can add their own delays simply because of caseload.

1. Filing the petition and depositing the will (Weeks 1–4). The original will must be deposited with the clerk in the county where the decedent lived. The named personal representative petitions for administration. If the will is self-proved, no witness testimony is needed.
2. Appointment and Letters of Administration (Weeks 2–8). The judge signs an order appointing the personal representative and issues Letters of Administration — the document that actually authorizes you to act on the estate’s behalf. Nothing meaningful happens until you hold these Letters.
3. Notice to creditors (Months 1–4). You publish a Notice to Creditors in a local newspaper for two consecutive weeks and serve known or reasonably ascertainable creditors directly. This starts the clock that governs the whole case.
4. The creditor claim period (Months 1–4, running concurrently). This is the unavoidable three-month minimum, discussed in detail below.
5. Inventory and asset marshaling (Months 1–6). Within 60 days of issuance of Letters, you file an inventory listing estate assets and values. Gathering account statements, getting appraisals, and securing property happens here.
6. Paying claims, taxes, and expenses (Months 4–9). Once the claim window closes, you resolve valid claims, object to improper ones, and settle administrative costs and any taxes.
7. Final accounting and distribution (Months 6–12+). You prepare a final accounting, distribute assets to beneficiaries, obtain receipts, and petition for discharge. The order of discharge closes the estate.

Why probate takes as long as it does: the creditor period

If clients remember one thing from a consultation, I want it to be this: you cannot close a formal estate before the creditor period runs. Even a flawless, uncontested estate has a hard floor of several months built into it by statute.

Florida law gives creditors a window to file claims against the estate. Under the framework of Florida Statutes § 733.702 and § 733.2121, a creditor generally must file a claim on or before the later of three months after the first publication of the Notice to Creditors, or — for a creditor who was served directly — 30 days after the date of service. Separately, § 733.212 gives interested persons three months from service of the notice of administration to object to the will’s validity, the venue, or the court’s jurisdiction.

The personal representative cannot safely distribute everything and walk away until these windows have closed and any filed claims are resolved. Distributing too early exposes you to personal liability if a legitimate creditor surfaces. So even when the family is in complete agreement and the assets are simple, the case sits open for the duration of the claim period by design. This creditor-claim architecture is one area where Florida and New York diverge in the details, and out-of-state families often find it useful to compare how when a decedent owned property in both states.

What slows a Florida probate down

Beyond the fixed creditor window, several recurring factors push estates toward the long end of the range — or well past it.

• Will contests and beneficiary disputes. A challenge to the will’s validity — undue influence, lack of capacity, improper execution — can add a year or more and convert administration into litigation. The mechanics of challenging a will mirror, in broad strokes, how , though Florida’s grounds and deadlines are governed by its own statutes.
• Federal estate tax. Estates large enough to owe federal estate tax must file IRS Form 706 and, in practice, often wait for a closing letter before final distribution. That alone can extend the case well beyond eighteen months.
• Real estate that has to be sold. Marketing time, inspections, and closing logistics are outside the court’s control and outside yours.
• Homestead determination. Florida’s constitutional homestead protections often require a separate court determination before the property can pass cleanly. It protects the family, but it adds a step.
• Missing or uncooperative beneficiaries. If an heir cannot be located or refuses to sign receipts, discharge stalls.
• Incomplete records. The single most common avoidable delay. If the personal representative cannot quickly produce account statements, deeds, and a clear list of assets, every downstream step slips.

What you can do to keep probate moving

As personal representative, you have real influence over the pace even though you cannot shortcut the statutory minimums. The estates that close fastest tend to share a few habits.

• Retain probate counsel early and gather documents before the first hearing. Note that in Florida, a personal representative in a formal administration is generally required to be represented by an attorney.
• Publish the Notice to Creditors promptly so the three-month clock starts as soon as possible — every week you delay is a week added to the back end.
• File the inventory within the 60-day deadline rather than treating it as an afterthought.
• Communicate with beneficiaries in writing and keep clean records of every expense and distribution.
• Resolve or formally object to creditor claims as they arrive instead of letting them pile up.

For South Florida families, working with a probate team that handles these filings daily is usually the difference between a nine-month case and a fifteen-month one. Our firm’s exists to keep personal representatives on schedule and out of personal liability. You can also review our overview of Florida probate procedure or the role that a properly drafted will plays in avoiding delay on our wills page. If you are ready to talk through a specific estate, reach out for a consultation.

The bottom line on Florida probate timing

Plan for nine to eighteen months for a typical formal administration, a few weeks to a couple of months for summary administration, and potentially years for a contested or taxable estate. The creditor claim period is the non-negotiable floor; everything else — disputes, taxes, real estate, recordkeeping — determines whether you finish near the bottom of the range or far above it. Knowing which category your estate falls into is the first step toward a realistic timeline and a smoother administration.

Frequently Asked Questions

What is the shortest time probate can take in Florida?

Summary administration, available for estates under the statutory value threshold (currently $75,000, rising to $150,000 on July 1, 2026) or when the decedent has been dead more than two years, can conclude in as little as two weeks to a couple of months. Formal administration cannot close that quickly because of the mandatory creditor claim period.

Why does Florida probate have a mandatory waiting period?

Florida law gives creditors time to file claims against the estate. Under Florida Statutes Sections 733.702 and 733.2121, a creditor generally must file within three months of the first publication of the Notice to Creditors, or 30 days after direct service if later. The personal representative cannot safely distribute the estate until that window closes, which creates a several-month floor on every formal case.

What makes a Florida probate take longer than a year?

The most common causes are will contests and beneficiary disputes, federal estate tax filings, real estate that must be sold, homestead determinations, missing or uncooperative heirs, and incomplete financial records. Any one of these can push an estate past 18 months.

Does the personal representative need a lawyer in Florida?

In most formal administrations, yes. Florida generally requires the personal representative to be represented by an attorney, except in very limited circumstances such as when the personal representative is the sole interested person. Summary administration has narrower requirements, but counsel is still common.

Can I speed up Florida probate as the executor?

You cannot shorten the statutory creditor period, but you can avoid self-inflicted delay: retain counsel early, publish the Notice to Creditors promptly, file the inventory within the 60-day deadline, keep clean records, and resolve creditor claims as they come in. These habits often turn a 15-month case into a 9-month one.

If you have just been appointed personal representative (Florida’s term for what other states call an executor or administrator), these two documents are where most of your fiduciary exposure lives. Get them right and the case tends to close quietly. Get them sloppy, late, or incomplete, and you invite objections, surcharge claims, and litigation. Below is a practical walkthrough from the perspective of how these requirements actually play out in South Florida probate courts.

What the Florida Probate Inventory Must Contain

The inventory requirement comes from section 733.604, Florida Statutes, and Florida Probate Rule 5.340. The rule is deceptively simple: list the estate’s property “with reasonable detail” and assign each item its estimated fair market value as of the date of death. The work, though, is in the detail.

The inventory covers probate assets — property that passed through the decedent’s name alone with no surviving co-owner and no beneficiary designation. That distinction trips up new personal representatives constantly. A few examples of what does and does not belong:

• Included: a home titled solely in the decedent’s name, a checking account with no payable-on-death beneficiary, a brokerage account in the decedent’s name only, a vehicle, personal property, and an interest in a closely held business.
• Excluded (non-probate): jointly titled real estate with right of survivorship, accounts with a valid POD or TOD designation, life insurance and retirement accounts with named living beneficiaries, and assets held in a revocable living trust.

For real property, you list a good-faith estimate of value; many personal representatives use a recent appraisal or the county property appraiser’s just value as a starting point, then refine it. For unique or hard-to-value assets — a closely held LLC interest, art, a coin collection — a formal appraisal is often the prudent move, because the value you swear to is the baseline against which beneficiaries will later measure the gains, losses, and distributions in your accounting.

The 60-Day Inventory Deadline and Safe-Deposit Boxes

Under section 733.604, a personal representative who is not a curator or a successor must file the inventory within 60 days after the issuance of letters. That clock starts the day the judge signs your letters of administration, not the day you finish gathering paperwork — so begin tracking down assets immediately.

Safe-deposit boxes have a separate, tighter rule. When you open the decedent’s safe-deposit box, you must file an inventory of its contents with the court within 10 days after the box is opened. If you discover assets after the original filing — a forgotten account, a previously unknown parcel — you file an amended or supplementary inventory rather than ignoring it.

Who Can See the Inventory

Florida treats probate inventories as confidential. Unless the court orders otherwise for good cause, the inventory may be inspected only by the clerk, the personal representative, the personal representative’s attorney, and other interested persons of the estate. A beneficiary or other interested person who asks for it is entitled to a copy, but the document is not laid open to the general public the way many court filings are. That confidentiality is intentional — it keeps the decedent’s financial picture out of casual view while still giving the people with a stake in the estate full access.

Accountings: Telling the Money’s Story

If the inventory is a snapshot taken on the date of death, the accounting is the movie that runs from your appointment through the close of the estate. A Florida probate accounting must show, in an organized format, where the estate started, everything that came in, everything that went out, and what remains. The governing standard is Florida Probate Rule 5.346, “Fiduciary Accounting.”

Rule 5.346 requires that an accounting include all cash and property transactions since the last accounting (or, if there was none, since administration began) plus a schedule of the assets on hand at the end of the period. In practice, a compliant accounting is built from standardized schedules:

1. Starting balance — the assets at the beginning of the accounting period, tied back to your inventory values.
2. Receipts — income and other money received: interest, dividends, rent, refunds, proceeds of sale.
3. Disbursements — funeral expenses, debts and creditor claims, taxes, attorney’s and personal representative’s fees, and administration costs.
4. Capital transactions and adjustments — gains or losses when assets are sold, and reconciliations between carrying value and sale price.
5. Distributions — partial or final distributions to beneficiaries.
6. Assets on hand at the end — what is left, ready to be distributed.

Two technical points matter here. First, accountings must also conform to Florida’s principal and income law in chapter 738, Florida Statutes, which dictates how items are allocated between income and principal — a distinction that becomes important when an estate has both income beneficiaries and remainder beneficiaries. Second, the math has to reconcile to the penny. Florida judges and opposing attorneys read these schedules closely, and a beginning balance that does not tie to the prior period or an ending balance that does not foot is the fastest way to draw a formal objection.

The Final Accounting and Petition for Discharge

You cannot simply distribute the assets and walk away. To close a formal administration, the personal representative files a final accounting together with a petition for discharge under Florida Probate Rules 5.400 and 5.346. As a general benchmark, formal administration is expected to be completed within roughly 12 months of the issuance of letters, though courts routinely extend that period for estates with litigation, tax returns, real estate to sell, or contested claims.

The final accounting and the plan of distribution must be served on all interested persons, who then have a window to object. If no one objects and the court approves, you make the final distributions, obtain receipts, and petition for discharge. The payoff for doing this correctly is significant: under section 733.901, Florida Statutes, the order of discharge releases the personal representative — and the surety on any bond — and bars later claims arising from the administration. That statutory release is precisely why you do not want to cut corners on the accounting that earns it.

When Beneficiaries Can Waive — and When They Can’t

Florida allows interested persons to waive a formal accounting and the more detailed elements of a petition for discharge, and in small, harmonious family estates they often do. A signed waiver and consent from every beneficiary can dramatically streamline closing. But waivers are only as good as the disclosure behind them and the unanimity of the signers. If even one beneficiary declines to sign, or if a minor, incapacitated, or unborn interest is involved, you are back to a full Rule 5.346 accounting. My standing advice to personal representatives: prepare your records as if a full accounting will be required, even when you hope for waivers. It is far easier to simplify a complete file than to reconstruct one under deadline.

Common Mistakes That Turn Routine Estates Into Litigation

Most accounting disputes I see in South Florida estates trace back to a short list of avoidable errors:

• Commingling funds. Open a dedicated estate bank account using the estate’s EIN and run every transaction through it. Personal and estate money must never touch.
• Missing receipts and documentation. Keep every invoice, statement, closing document, and canceled check. The burden is on the personal representative to prove each disbursement was proper.
• Undervaluing or omitting assets on the inventory. An inventory that understates value invites surcharge claims if assets later “appear” or sell for far more.
• Paying yourself or beneficiaries early. Creditors generally come before beneficiaries; distributing too soon can leave you personally exposed for unpaid valid claims.
• Treating deadlines as suggestions. A late inventory or stale accounting signals mismanagement to the court and the beneficiaries, even when nothing improper happened.

These problems are most damaging in contested estates. When beneficiaries are already at odds, the inventory and accounting become the battlefield, and a careful estate-litigation attorney will dissect every schedule. Firms that handle see the same pattern over and over: the fight is rarely about whether money moved, but about whether the personal representative can document that it moved properly. The same financial-transparency principles apply whether the estate sits in a New York or a Florida administration — the schedules look different, but the duty to account is the heart of the job in every jurisdiction.

Practical Steps for a New Personal Representative

If you have just been appointed, here is a sensible order of operations. Secure and identify all assets right away. Obtain date-of-death values, ordering appraisals for anything hard to value. File the inventory within 60 days, and the safe-deposit box inventory within 10 days of opening any box. Open a single estate account and route everything through it. Keep a running ledger from day one — receipts, disbursements, sales — so the final accounting is a matter of formatting, not reconstruction. And handle creditor claims before you distribute.

None of this requires you to become a forensic accountant overnight, but it does reward discipline and good counsel. An experienced probate attorney will keep your filings on schedule, structure the accounting to satisfy Rule 5.346, and protect the statutory discharge that ultimately ends your personal exposure. If your matter has Florida-specific complexity, the team at handles these administrations regularly, and you can learn more about the documents that drive them on our pages covering wills and the broader Florida probate process. When you are ready to talk through your specific estate, reach out for a consultation.

Frequently Asked Questions

How long does a personal representative have to file the inventory in Florida?

Generally 60 days after the issuance of letters of administration, under section 733.604, Florida Statutes. If you open the decedent’s safe-deposit box, you must file an inventory of its contents within 10 days of opening it. Assets discovered later are added through an amended or supplementary inventory.

What is the difference between a probate inventory and an accounting in Florida?

The inventory is a date-of-death snapshot listing the estate’s probate assets and their fair market values. The accounting is the running financial record of the entire administration — receipts, disbursements, gains, losses, distributions, and assets on hand — prepared under Florida Probate Rule 5.346 and filed with the petition for discharge to close the estate.

Can beneficiaries waive the final accounting?

Yes. If every interested person signs a waiver and consent, Florida allows a personal representative to skip a formal final accounting and streamline the discharge. But if any beneficiary refuses, or a minor, incapacitated, or unborn interest is involved, a full Rule 5.346 accounting is required. It is wise to keep complete records as if a full accounting will be needed.

What value do I use for assets on the Florida inventory?

You use the estimated fair market value as of the decedent’s date of death. For real property, an appraisal or the county property appraiser’s value is a common starting point; for unique assets like business interests, art, or collections, a formal appraisal is often prudent because that value becomes the baseline for your later accounting.

What happens if the accounting is wrong or incomplete?

Errors invite formal objections from beneficiaries and can lead to surcharge claims holding the personal representative personally liable. Because the schedules must reconcile exactly and every disbursement must be documented, an inaccurate or undocumented accounting is the most common trigger for probate litigation. A correct, court-approved final accounting earns the statutory discharge under section 733.901 that releases you from future claims.

That single distinction drives most of the early decisions an executor in South Florida has to make. It determines what you actually have authority over, what the estate can be taxed or charged against, and whether you even need to open a formal probate case at all. Let’s walk through how Florida treats these assets, where the traps are, and what you should do before you sign anything.

What Counts as a Probate Asset in Florida

A probate asset is property the decedent owned at death that does not transfer automatically to someone else. The classic examples are a bank account titled in the decedent’s name alone, real estate held as a sole owner or as a tenant in common, a car titled to one person, and personal belongings. These are the assets that fall under the probate court’s supervision and that you, as personal representative, are appointed to collect, protect, and distribute under Chapter 733 of the Florida Statutes.

Everything else — and it is often the larger share of a modern estate — moves through what attorneys call non-probate transfers. Understanding the line between the two is not academic. Misjudge it and you can spend months and several thousand dollars probating an estate that barely needed it, or worse, distribute property you had no legal authority to touch.

The two questions that decide everything

1. How is the asset titled? Joint ownership with survivorship rights changes the answer entirely.
2. Is there a beneficiary or payable-on-death designation? A valid designation generally overrides the will.

Ask those two questions about each asset and the picture clears up fast. The will, despite what most families assume, controls only the leftovers — the sole-name assets with no designation.

Jointly Held Property and the Survivorship Question

Florida recognizes several forms of co-ownership, and the form matters more than the names on the deed. Joint tenancy with right of survivorship and tenancy by the entireties both carry a survivorship feature: when one owner dies, their interest evaporates and the survivor owns the whole thing. There is nothing for probate to administer because, legally, the decedent’s share ended at death.

Tenancy by the entireties deserves special attention because it is unique to married couples and is extremely common in Florida. A homestead or bank account held this way passes to the surviving spouse automatically and, as a bonus, enjoys strong creditor protection during the marriage. Under section 689.115 of the Florida Statutes, mortgages and certain instruments to spouses are presumed to create a tenancy by the entireties, which catches a lot of personal representatives by surprise.

Where joint ownership gets complicated

• Tenancy in common has no survivorship. If two siblings own a beach condo as tenants in common, the deceased sibling’s half is a probate asset and passes under their will or by intestacy. Co-ownership does not automatically mean the survivor takes all.
• “Convenience” accounts. An aging parent often adds an adult child to a bank account only to help pay bills. Under section 655.79, Florida law presumes a joint account passes to the survivor, but that presumption can be rebutted with clear and convincing evidence that no gift was intended. These disputes are bitter and common.
• Real estate titling errors. A deed that simply lists two grantees without the magic survivorship language usually creates a tenancy in common, not joint tenancy. Read the deed; do not assume.

If you are a personal representative and the family is feuding over a joint account, do not distribute it on a hunch. Get the account agreement and the deed in front of an attorney first.

Beneficiary-Designated and Payable-on-Death Assets

The other large category of non-probate property is anything that names a beneficiary. These pass by contract or statute directly to the named person, and the will has no say in the matter. The most common examples in a Florida estate include:

• Life insurance with a named beneficiary
• Retirement accounts — IRAs, 401(k)s, 403(b)s, and annuities
• Payable-on-death (POD) bank accounts and totten trusts
• Transfer-on-death (TOD) brokerage and securities accounts, authorized under Florida’s Uniform Transfer-on-Death Security Registration Act, sections 711.50–711.512
• Lady Bird deeds (enhanced life estate deeds), which let real estate pass to a remainder beneficiary while the owner keeps full control during life

The governing rule is simple and unforgiving: the beneficiary designation controls, even when it contradicts the will. If a man’s will leaves “everything to my children” but his life insurance policy still names his ex-wife, the ex-wife collects. A will cannot rewrite a contract with an insurance company.

The designation traps every executor should check

I have seen more estates derailed by stale designations than by any dramatic will contest. Watch for these:

• Predeceased or no beneficiary. If the only named beneficiary died first and there is no contingent beneficiary, the asset often defaults to the estate and becomes a probate asset after all.
• Ex-spouses. Florida’s section 732.703 automatically voids certain beneficiary designations in favor of a former spouse after divorce — but it does not reach federally governed assets like ERISA retirement plans, where the named ex-spouse may still win.
• Minor beneficiaries. Naming a minor child directly can force a guardianship of the property, which is exactly the court process families were trying to avoid.
• “Estate” as beneficiary. When someone names their own estate as beneficiary, that asset is pulled into probate by design.

What This Means for You as Personal Representative

Your fiduciary duties under Florida law attach to probate assets. You generally have no authority to collect or manage a POD account that passed to a named individual — that money is theirs, not the estate’s, and you should not be touching it. Confusing the two is a fast way to create personal liability.

That said, non-probate assets do not vanish from your radar entirely. A few important crossovers:

• Creditor claims and the elective share. Florida’s surviving-spouse elective share under sections 732.201–732.2155 reaches into many non-probate assets, including joint accounts, POD accounts, and revocable trust property. A spouse can claim 30% of the augmented estate regardless of how things were titled.
• Homestead. Florida’s constitutional homestead protections and restrictions on devise can override ordinary titling and beneficiary rules, especially when a spouse or minor child survives.
• Estate tax apportionment. If a federal estate tax is owed, non-probate beneficiaries may have to contribute their proportionate share under section 733.817.

A useful early step is to build a simple two-column inventory: probate assets on one side, non-probate transfers on the other, with the controlling document noted for each. That single document will guide nearly every decision you make and is the backbone of any competent administration. The almost always trace back to assets that were misclassified at the very start.

When you may not need full probate at all

If virtually everything passed by survivorship or designation and only a modest sole-name asset remains, Florida offers streamlined paths. Disposition without administration is available for very small estates where the only assets are exempt property or final expenses. Summary administration under sections 735.201–735.206 is available when the probate estate is valued at $75,000 or less, or when the decedent has been dead for more than two years. Either route can save your family substantial time and cost — but only an honest asset inventory tells you whether you qualify.

Coordinating Your Plan Before Death — A Note for Families

For readers who are planning rather than administering, the lesson cuts both ways. Beneficiary designations and joint titling are powerful tools for keeping assets out of probate, but only when they are coordinated with the will and trust. A will that has been carefully drafted means little if the beneficiary forms quietly contradict it. Review your designations after every major life event — marriage, divorce, a birth, a death — and keep them in sync with your overall estate plan.

Cross-state families are a special case. We frequently work with clients who own property in both Florida and New York, where the interplay of two probate systems demands careful planning; Morgan Legal’s team handles alongside Florida matters so nothing falls through the jurisdictional cracks. For estates centered here in South Florida, our attorneys guide personal representatives through every stage of from the first inventory to final distribution.

Whether you are stepping into the role of executor or trying to spare your own family the headache, the principle is the same: title and designations win, the will gets the rest. If you are unsure which category an asset falls into, that is exactly the question worth asking before you act. Learn more about the Florida probate process or reach out to our office to talk through your specific estate.

Frequently Asked Questions

Do jointly held bank accounts go through probate in Florida?

Usually not. Florida law (section 655.79) presumes a joint account passes to the surviving owner outside probate. That presumption can be challenged with clear and convincing evidence that the account was only set up for convenience and no gift was intended, so contested joint accounts can still end up before the court.

Does a beneficiary designation override my will in Florida?

Yes. Assets with a valid beneficiary, payable-on-death, or transfer-on-death designation pass directly to the named person and are not controlled by the will. If your will and your beneficiary forms conflict, the designation generally wins, which is why keeping them coordinated is critical.

What happens if the named beneficiary died before the account owner?

If there is no surviving primary or contingent beneficiary, the asset often defaults to the decedent’s estate and becomes a probate asset. Some designations name the estate directly, which also pulls the asset into probate. Always check for contingent beneficiaries.

Can a surviving spouse claim non-probate assets in Florida?

Yes. Florida’s elective share (sections 732.201–732.2155) lets a surviving spouse claim 30% of the augmented estate, which reaches many non-probate assets including joint accounts, POD accounts, and revocable trust property, regardless of how they were titled.

Do I need to open probate if everything passed by survivorship or designation?

Maybe not. If only a small sole-name asset remains, Florida offers disposition without administration or summary administration (estate of $75,000 or less, or death more than two years ago). An accurate asset inventory determines whether you qualify.

If you’ve found yourself sorting out a parent’s or spouse’s affairs and the assets are limited, understanding which of these tracks applies can save you months and several thousand dollars. I’ve walked many South Florida families through this, and the most common mistake I see is assuming every death requires a full-blown probate. Often it doesn’t.

What “Small Estate” Means Under the Florida Probate Code

Chapter 735 of the Florida Statutes is literally titled “Probate Code: Small Estates.” It carves out two distinct procedures, and they are not interchangeable. One is essentially administrative; the other is a real, if shortened, court case. Choosing correctly depends on the size of the estate, the type of assets involved, and how long it’s been since the person passed.

Personal representatives and executors named in a will sometimes discover that there’s no traditional role for them here at all. Disposition Without Administration appoints no one. Summary Administration appoints no personal representative either, in the usual sense. That surprises people who expected to be “in charge.” In a small estate, the court’s goal is to move property to the rightful recipients with the least friction possible.

Disposition of Personal Property Without Administration (Fla. Stat. § 735.301)

This is the narrowest and fastest option Florida offers. There is no formal proceeding, no personal representative, and frequently no lawyer required, though one can help you avoid a rejected filing. The clerk of the circuit court in the county where the decedent lived handles the request, usually with a short packet of forms.

When Disposition Without Administration Is Available

Under § 735.301, no administration is required when the decedent left only:

• Exempt personal property under § 732.402, which includes household furnishings and appliances up to a statutory value and up to two motor vehicles used by the decedent or immediate family;
• Personal property exempt from creditors’ claims under the Florida Constitution; and
• Non-exempt personal property whose value does not exceed the sum of preferred funeral expenses plus reasonable and necessary medical and hospital expenses of the last 60 days of the final illness.

Read that last bullet carefully, because it’s the part that trips everyone up. The non-exempt property can’t simply be “small.” It must be no greater than what was spent on the funeral and the last 60 days of medical bills. In practice, this procedure exists largely to reimburse a family member who paid those final expenses out of pocket. If a daughter covered $9,000 in funeral and hospital costs and her late mother left a $7,000 bank account, that account can typically be released to her without probate.

What You’ll Need to File

The exact packet varies slightly by county, so check with your local clerk, but you should generally be prepared with:

1. A certified copy of the death certificate;
2. A copy of the will, if one exists (the original is usually deposited with the court);
3. Paid receipts or itemized statements for funeral and final medical expenses;
4. Documentation of the asset to be released, such as a bank statement or vehicle title;
5. The clerk’s Disposition Without Administration form or an informal affidavit/letter from an interested party.

If the court is satisfied that the statute applies, it issues a written authorization under seal directing the bank, employer, or other holder to pay or transfer the property. A useful protection built into § 735.301: any person or institution that releases property under that authorization is forever discharged from liability. That discharge is what makes banks comfortable handing over funds without letters of administration.

Summary Administration (Fla. Stat. § 735.201)

When an estate is too large for Disposition Without Administration but still modest, Summary Administration is usually the answer. It is a genuine court proceeding, but a compressed one. There is no months-long creditor period running the show and no ongoing personal representative managing assets over time.

Two Independent Paths to Qualify

An estate qualifies for Summary Administration if either of these is true:

• The value of the entire estate subject to administration in Florida, minus property exempt from creditors’ claims, does not exceed $75,000; or
• The decedent has been dead for more than two years.

The two-year path is powerful and often overlooked. Florida’s nonclaim statute generally bars creditor claims two years after death, so once that window closes there is no dollar cap at all. I’ve handled summary administrations for estates well above $75,000 purely because the family came to us years after the death, often when they finally needed to sell a property or clear a title.

How the Process Works

Summary Administration is initiated by filing a Petition for Summary Administration in the circuit court of the county where the decedent was domiciled. Every beneficiary must either join the petition or be formally served. The petition lists the assets, their values, and the people entitled to receive them. If a will exists, it must be admitted.

Once satisfied, the judge enters an Order of Summary Administration that directly distributes the assets to the named recipients. That order functions much like a deed or transfer instruction; you take it to the bank or record it against real property. There is no personal representative appointed, which is the key structural difference from formal administration.

The Creditor Catch You Shouldn’t Ignore

Because no personal representative is appointed and no formal notice-to-creditors period is run, those who receive property through Summary Administration can remain personally liable to creditors for up to two years after the death, up to the value of what they received. Petitioners are expected to make a diligent search for creditors and either pay or provide for known claims. When debts are uncertain, serving a notice to creditors during the summary proceeding can shorten that exposure. This is precisely the kind of judgment call where an attorney earns the fee.

Disposition vs. Summary Administration vs. Formal Probate

A quick way to orient yourself:

• Disposition Without Administration — no proceeding, no appointment; only exempt property plus a small non-exempt amount tied to final expenses.
• Summary Administration — abbreviated court order; estate under $75,000 (net of exempt property) or decedent dead over two years.
• Formal Administration — full probate with an appointed personal representative; required for larger estates, contested matters, or when ongoing management of assets is needed.

The mechanics differ from state to state, and clients who own property in more than one jurisdiction often ask how Florida compares. New York, for example, runs its small-estate “voluntary administration” quite differently and has its own probate tracks. If you’re juggling assets up north, Morgan Legal’s overview of the is a helpful companion, and their breakdown of the shows just how much the rules vary by state. For Florida-specific matters, our colleagues at the handle these proceedings statewide.

Real Property Complicates the Picture

Both small-estate procedures lean heavily toward personal property. Real estate raises its own questions, especially Florida’s robust homestead protections. A homestead often passes outside the probate estate entirely or under constitutional descent rules, and it generally doesn’t count toward the $75,000 Summary Administration threshold because it’s exempt from creditors. But getting clean, insurable title to a homestead frequently still requires a court determination, sometimes within the summary proceeding itself.

If the only meaningful asset is the family home, don’t assume you’re stuck with formal probate. You may qualify for Summary Administration and a petition to determine homestead status in the same filing. To understand how Florida treats homestead within probate, see our overview of Florida probate basics, and if you’re still planning ahead, our wills and estate planning resources explain how to structure things so your heirs avoid this entirely.

Practical Guidance for Personal Representatives and Heirs

A few hard-won pointers:

• Keep every receipt. For Disposition Without Administration, funeral and last-illness bills are your eligibility ceiling. Without documentation, the clerk can’t release anything.
• Count assets net of exemptions. The $75,000 Summary Administration limit excludes property exempt from creditors, so an estate can look larger on paper than it is for qualification purposes.
• Mind the two-year clock. Waiting past two years can actually simplify Summary Administration by removing the value cap, but it also delays access to assets.
• Don’t distribute and disappear. Summary Administration recipients carry creditor exposure. Resolve known debts before assets are spent.
• Bank policies vary. Some institutions are conservative even with a court order; a brief cover letter citing the statute and the discharge-of-liability provision usually resolves it.

Small estate procedures are one of the genuinely friendly corners of Florida probate law. Used correctly, they let a grieving family move on in weeks rather than a year. Used incorrectly, a rejected filing or an overlooked creditor can turn a simple matter into a formal administration anyway. When you’re unsure which track fits, a short consultation is far cheaper than a misstep.

If you’re a personal representative or heir wondering whether your situation qualifies, reach out to our South Florida probate team for a straightforward assessment.

Frequently Asked Questions

What is the difference between Disposition Without Administration and Summary Administration in Florida?

Disposition of Personal Property Without Administration (Fla. Stat. 735.301) involves no court proceeding and applies only when the estate consists of exempt property plus a small amount of non-exempt property not exceeding funeral and last-illness medical expenses. Summary Administration (Fla. Stat. 735.201) is an abbreviated court proceeding that ends in an order distributing assets, available when the estate is worth $75,000 or less (net of exempt property) or the decedent has been dead more than two years.

What is the dollar limit for Summary Administration in Florida?

The value of the estate subject to administration, minus property exempt from creditors’ claims, must not exceed $75,000. However, if the decedent has been dead for more than two years, there is no dollar limit because creditor claims are generally barred after two years.

Do I need a lawyer for Disposition of Personal Property Without Administration?

Not necessarily. Many clerks of court provide a self-help packet, and interested parties can apply informally by affidavit or letter. That said, an attorney can help confirm eligibility, document funeral and medical expenses correctly, and avoid a rejected filing that forces you into a longer proceeding.

Can real estate be transferred through a small estate procedure in Florida?

Real estate generally cannot pass through Disposition Without Administration, which is limited to personal property. It can be addressed in Summary Administration, often alongside a petition to determine homestead status. A Florida homestead is typically exempt from creditors and does not count toward the $75,000 threshold, but obtaining clean, insurable title usually still requires a court order.

Are heirs responsible for the decedent's debts after Summary Administration?

Yes, to a degree. Because no personal representative is appointed and no formal creditor period is run, recipients can remain personally liable to creditors for up to two years after death, limited to the value of the property they received. Resolving known debts before spending distributed assets is essential.

If you have been asked to serve as the personal representative of a Florida estate with no will, or you suspect you are an heir, understanding how intestate succession works is the difference between a clean administration and months of avoidable conflict. Below is a working explanation written from the trenches of South Florida probate practice.

What “intestate” actually means in Florida probate

A person dies intestate when they leave no will at all, or when the will they left is invalid—improperly witnessed, revoked, or successfully challenged. Partial intestacy is also common: someone writes a will that disposes of part of their property but forgets a bank account, a brokerage account, or a parcel of land. The covered assets pass under the will; the leftover assets pass by intestate succession.

One point trips up nearly everyone: not every asset goes through probate in the first place. Jointly titled real estate with rights of survivorship, accounts with a named beneficiary, “payable on death” and “transfer on death” designations, and life insurance proceeds generally pass outside probate and outside the intestacy rules entirely. Intestate succession governs only the probate estate—assets titled in the decedent’s sole name with no surviving co-owner or beneficiary. A surprising number of “estates” turn out to have almost nothing left to probate once these non-probate transfers are accounted for.

Who inherits when there is no will: the order of heirs

Florida’s distribution scheme follows a strict hierarchy. The estate does not get split among everyone who shows up; it flows down a defined ladder, and once a tier inherits, the lower tiers receive nothing.

The surviving spouse’s share (§ 732.102)

The spouse comes first, and the size of the spousal share depends entirely on who else survived the decedent:

• Spouse, no descendants: the surviving spouse takes the entire intestate estate.
• Spouse and descendants, all shared with the spouse: when every surviving child or grandchild of the decedent is also a descendant of the surviving spouse, the spouse takes the entire intestate estate. (This reflects the law as amended; older guidance describing a “first $60,000 plus half” split no longer applies in this scenario.)
• Spouse plus descendants who are not the spouse’s descendants: the surviving spouse takes one-half of the intestate estate, and the decedent’s descendants share the other half. This is the classic blended-family result.
• Surviving spouse who has descendants from another relationship, even if the decedent’s children are all shared: the spouse still takes only one-half. The statute looks at both sides.

This last wrinkle catches second marriages constantly. If both spouses have children from prior relationships, the surviving spouse rarely inherits everything—a result that almost never matches what the couple assumed would happen.

Descendants and more distant relatives (§ 732.103)

Whatever does not pass to a surviving spouse—or the entire estate if there is no spouse—descends in this order under section 732.103:

1. To the decedent’s descendants (children, then grandchildren, and so on).
2. If no descendants, to the decedent’s father and mother equally, or to the survivor of them.
3. If no parents, to the decedent’s brothers and sisters and the descendants of any deceased siblings.
4. If none of the above, the estate is split between the paternal and maternal kindred—grandparents, aunts, uncles, cousins—half to each side.
5. If only one side has surviving kindred, that side takes the whole estate.

The statute reaches quite far down the family tree before giving up. Genuine “no heirs at all” cases are rare, but when they happen, the estate escheats to the State of Florida under section 732.107. Escheat is the legal last resort, not a routine outcome.

How shares are divided: per stirpes (§ 732.104)

Florida distributes intestate property per stirpes, which is Latin for “by the branch.” Section 732.104 applies this method to both lineal descendants and collateral heirs. Here is how it works in practice.

Imagine a widow dies intestate with three children, but one child predeceased her, leaving two children of his own (her grandchildren). The estate splits into three equal branches at the children’s level. The two living children each take their one-third. The deceased child’s one-third does not disappear and does not get redistributed to his siblings—it drops down to his branch, so his two children split that one-third, taking one-sixth each. Each branch of the family is treated equally, regardless of how many people stand in it.

Per stirpes is intuitive once you see it, but it produces results that surprise families who assume “everyone splits it evenly.” Grandchildren inherit only through a deceased parent’s branch, never alongside their living aunts and uncles.

The homestead: Florida’s most misunderstood intestacy issue

No discussion of dying without a will in Florida is complete without the homestead. The constitutionally protected homestead does not pass like ordinary probate property, and section 732.401 governs its descent.

If the decedent is survived by a spouse and one or more descendants, the surviving spouse receives a life estate in the homestead, with a vested remainder to the descendants in being at the decedent’s death, per stirpes. In other words, the spouse may live there for life, but the children own the future interest.

Because a life estate carries real burdens—the life tenant typically shoulders taxes, insurance, and upkeep—Florida law (amended in 2010) gives the surviving spouse an alternative. Within a defined window, the spouse may elect to take an undivided one-half interest as a tenant in common instead, with the descendants taking the other half. The election must be made by filing and recording a proper notice in the county where the homestead sits. Miss the deadline and the default life estate stands. For a surviving spouse in Miami-Dade, Broward, or Palm Beach County, this single decision can reshape the entire inheritance, and it should never be made without legal advice.

The personal representative’s role in an intestate estate

With no will, there is no nominated executor—so Florida law sets the order of preference for who may serve as personal representative. The surviving spouse has first priority, followed by the heir selected by a majority of those entitled to the estate, then the heir nearest in degree. The appointee must be qualified to serve (Florida imposes residency and felony restrictions) and is issued Letters of Administration by the court.

From there, the job mirrors any other probate administration: identify and inventory assets, give notice to creditors, pay valid debts and expenses, file the necessary accountings, and distribute what remains to the statutory heirs. The catch is that in an intestate estate the personal representative must distribute strictly by statute. There is no document expressing the decedent’s intent to fall back on, which is exactly why disputes among heirs are more frequent here. Many of the —heir disagreements, hard-to-value assets, missing or unknown relatives—land squarely on the personal representative’s shoulders when no will exists to guide the way.

Common ways intestacy goes sideways

• Unmarried partners inherit nothing. Florida intestacy recognizes legal marriage, not long-term cohabitation. A devoted partner of twenty years is not an heir.
• Stepchildren are not heirs unless legally adopted. Biological and adopted descendants inherit; stepchildren do not.
• Half-siblings inherit half-shares. Under section 732.105, when collateral heirs are involved, a sibling of the half blood takes half as much as a sibling of the whole blood.
• The 120-hour survival rule. Under section 732.601, an heir who does not survive the decedent by at least 120 hours is treated as having predeceased—important in accidents involving multiple family members.
• Disinheritance happens by accident. People who would never have left a child or a charity out of their plan do exactly that by dying without a will, because the statute has no idea what they wanted.

That last point is the real lesson. Intestate succession is a one-size plan imposed on infinitely varied families, and it frequently produces outcomes the decedent would have rejected. A signed will, or even a basic estate plan documented at our wills and estate planning page, removes the guesswork. If you are navigating an estate that is already in probate, our Florida probate guide walks through the administration steps in detail.

When to bring in a Florida probate attorney

Intestate administration is rarely a do-it-yourself project. Heir identification, the homestead election, creditor claims, and disputes among beneficiaries all carry deadlines and traps that can expose a personal representative to personal liability. When inheritance is contested—whether someone challenges who the heirs are or, in a will-based estate, attacks the document itself—the stakes climb fast; the mechanics of illustrate just how technical these fights become. Morgan Legal Group handles probate on both coasts, and their can guide a personal representative through an intestate estate from petition to final distribution.

If you have been named to administer an estate with no will, or you believe you are entitled to inherit, do not guess at the statute. Contact our office for a focused review of who the heirs are and what each is owed under Florida law.

Frequently Asked Questions

Who inherits if someone dies without a will in Florida?

Under Chapter 732, the surviving spouse inherits first, with the share depending on whether there are descendants and whether those descendants are shared with the spouse. If there is no spouse, the estate passes to the decedent’s descendants, then parents, then siblings, and finally to more distant kindred. Only when no qualifying relatives exist does the estate escheat to the State of Florida.

Does my spouse automatically get everything if I die without a will in Florida?

Not always. A surviving spouse takes the entire intestate estate only when there are no descendants, or when all of the decedent’s descendants are also descendants of the surviving spouse and the spouse has no other descendants. In a blended family—where either spouse has children from another relationship—the surviving spouse generally receives only one-half, with the descendants sharing the rest.

What is per stirpes distribution in Florida intestate succession?

Per stirpes, meaning ‘by the branch,’ divides the estate into equal shares at the first generation of heirs. If an heir in that generation has died, that heir’s share does not vanish or pass to their siblings; it drops down to that heir’s own descendants, who split it. Section 732.104 applies this method to both descendants and collateral heirs.

What happens to the Florida homestead when there is no will?

If the decedent leaves a spouse and descendants, section 732.401 gives the surviving spouse a life estate in the homestead, with the descendants holding a vested remainder per stirpes. Since 2010, the spouse may instead elect, within the statutory deadline, to take an undivided one-half interest as a tenant in common, with the descendants taking the other half. The election must be properly recorded in the county where the property is located.

Can an unmarried partner or stepchild inherit under Florida intestacy law?

No. Florida intestate succession recognizes legal marriage and biological or legally adopted descendants. A long-term unmarried partner is not an heir, and stepchildren do not inherit unless they were legally adopted by the decedent. The only reliable way to provide for them is through a valid will or other estate planning.