Do I need probate in Florida? Which assets and estates skip it
Probate applies to property owned in the decedent's sole name with no co-owner or beneficiary. This guide sorts each asset type by how it passes, then lists the Florida proceedings by size, with the 2026 small-estate amounts and every statute linked.
Probate administration in Florida covers the “estate,” defined as the property of a decedent that is the subject of administration (§ 731.201, Fla. Stat. (2026)). Property that passes by a survivorship right, a beneficiary designation or a trust is not subject to administration, and probate is needed for what is left: assets titled in the decedent's sole name, or as tenants in common, with no survivor or named beneficiary. The Florida Bar's consumer pamphlet (Probate in Florida, updated January 2021) draws the same line.
Having probate assets does not always mean opening a full estate. Florida has smaller procedures: disposition without administration, payment of small bank accounts by affidavit, and summary administration. Table 2 lists them with their 2026 limits.
Last checked: October 17, 2026. This page is general information with official sources, not legal advice for a particular estate.
How each asset passes
| Asset and title | How it passes | Probate for this asset? | Source |
|---|---|---|---|
| House or land in the decedent's sole name | To devisees under the will, or to heirs by intestacy. A protected homestead follows constitutional and statutory descent and devise rules instead. | Yes, unless the owner transferred it during life, for example into a trust (see the Lady Bird deed and trust funding guides). A court order can determine protected homestead status. | § 731.201; Art. X, § 4, Fla. Const.; Fla. Prob. R. 5.405 |
| Real property held by a married couple as tenants by the entirety | To the surviving spouse by operation of law. Property held as tenants by the entirety or in joint tenancy with survivorship is not protected homestead for Code purposes. | No | § 689.15; § 731.201 |
| Real or personal property held "jointly" by non-spouses | Survivorship exists only if the instrument expressly provides for it. Otherwise the co-owners hold as tenants in common, and the decedent's share is a probate asset. | Only if survivorship is not expressly stated | § 689.15 |
| Joint bank account | To the surviving account holder, presumed unless the account agreement says otherwise. A deposit in the names of husband and wife is considered a tenancy by the entirety unless otherwise specified in writing. | No | § 655.79 |
| Pay-on-death bank account | To the surviving party, then the named beneficiaries in equal shares; to the last party's estate if no beneficiary survives. | No, unless no beneficiary survives | § 655.82(3) |
| Brokerage or other security registered in beneficiary (TOD) form | To the designated beneficiary after the owner's death. The designation has no effect on ownership until then. | No | § 711.501(1); § 711.502; § 711.506 |
| Life insurance with a named beneficiary | To the named beneficiary, exempt from the insured's creditors unless the policy provides otherwise. If the policy is payable to the insured or the insured's estate, the proceeds become part of the estate. | No, unless payable to the estate | § 222.13(1) |
| IRA, 401(k), annuity with a named beneficiary | To the beneficiary named with the plan or custodian. Payable to the estate means a probate asset. | No, unless payable to the estate | Florida Bar, Probate in Florida; § 222.21 (creditor exemption) |
| Assets titled in the name of a revocable trust | By the trust terms. The trust remains liable for the estate's administration expenses and obligations when the probate estate cannot pay them. | No. The trust's assets are not probate assets. | § 733.707(3); § 736.05053; Florida Bar, The Revocable Trust in Florida |
| A trust that was signed but never funded | The assets stay in the decedent's name, so they pass under the will, usually a pour-over will, or by intestacy. | Yes | § 732.513 |
| Car, truck or mobile home in the decedent's name | The state may issue a title without a court order on an affidavit that the estate is not indebted and the heirs have agreed on the division (intestate owner), or on a certified copy of a probated will with an affidavit that the estate is solvent (testate owner). A Florida-licensed attorney's affidavit can support a testate transfer. | Sometimes. The title office decides under the statute. | § 319.28(1) |
| Household furniture up to $20,000 net, two qualifying vehicles | Exempt property goes to the surviving spouse, or to the children if there is no spouse, free of creditor claims except perfected security interests. A petition must be filed within the later of 4 months after service of the notice of administration or 40 days after related proceedings end. | A petition for determination of exempt property is filed in the estate proceeding | § 732.402 |
Sources: the sections linked in each row, 2026 Florida Statutes. The Florida Bar pamphlets are further reading only; the revocable trust pamphlet is dated December 2018 and its earlier summary administration figure ($75,000) was replaced by the $150,000 in § 735.201(2).
Which Florida proceeding fits
Table 2 lists each Florida procedure for what is left after the non-probate assets are set aside. Ch. 2026-57, Laws of Fla., raised four small-estate amounts effective July 1, 2026 (act text, §§ 7 through 10, 14). The statute itself states the amounts; read each section for its conditions.
| Proceeding | Limit (2026 text) | Conditions in the statute | Source |
|---|---|---|---|
| Payment of small bank accounts by affidavit | All the decedent's qualified accounts total $2,000 or less | Sole-name accounts without a survivor designation. Payable only to a spouse, adult child, adult descendant or parent in that priority. Not before 6 months after death. No personal representative appointed and no probate or summary administration begun. The affiant is personally liable to creditors and rightful claimants to the extent the amount exceeds the affiant's share. | § 735.303 |
| Disposition without administration of intestate personal property | $20,000 of nonexempt personal property, plus funeral expenses and the last 60 days' medical expenses | Decedent died intestate leaving only exempt personal property and nonexempt personal property up to the limit. Deceased more than 1 year. No administration pending in Florida. Heir's affidavit with a diligent creditor search; notice to the Agency for Health Care Administration if the decedent was over 55. | § 735.304 |
| Disposition without administration of exempt property and funeral and medical costs | Only personal property exempt under § 732.402 or the Constitution, plus nonexempt personal property up to preferred funeral expenses and the last 60 days' medical and hospital expenses | Informal application by affidavit or letter. The court authorizes payment or transfer in a writing under the court's seal. | § 735.301 |
| Income tax refund payment | $5,000 or less | Federal overpayment refunded to the surviving spouse, or to a child designated by all children over 14, if the decedent was not indebted and no administration is planned. | § 735.302 |
| Summary administration | Entire estate subject to administration, less property exempt from creditors, is $150,000 or less, or the decedent has been dead more than 2 years | A testate decedent's will must not direct administration under ch. 733. Petition signed and verified by the surviving spouse and beneficiaries (a beneficiary receiving a full distributive share need not join). Diligent search for creditors; known creditors served. Distribution by court order. Recipients are personally liable for a pro rata share of claims, up to what each receives. | § 735.201; § 735.203; § 735.206; Fla. Prob. R. 5.530 |
| Formal administration | Any estate that does not fit a path above, or whose will directs administration | Personal representative appointed; notice to creditors published; inventory; claims period; accounting; discharge. See the timeline guide. | ch. 733; Fla. Prob. R. 5.200 and following |
| Ancillary administration | Nonresident decedent with Florida property. A nonresident's testate estate with Florida property of $50,000 or less may use a short filing by the foreign personal representative within 2 years of death. | A Florida personal representative is appointed to the Florida property, with creditor notice and Florida bond as in an original administration. | § 734.102; § 734.1025 |
The $150,000, $2,000, $5,000 and $20,000 figures were raised by ch. 2026-57, Laws of Fla., effective July 1, 2026 (act text). The Florida Bar's probate pamphlet (updated January 2021) and the Ninth Judicial Circuit's summary administration checklist (revised October 31, 2022) show the earlier $75,000 figure. The 2026 statute controls, and a local checklist that conflicts with it is out of date on that point.
Steps to decide
1. List every asset and how it is titled. Use deeds, account statements, vehicle titles, insurance policies and plan statements. The title or beneficiary form controls, not the will.
2. Collect the beneficiary and survivorship forms. A joint owner needs a death certificate. A beneficiary needs a death certificate and the institution's claim form.
3. Add up the sole-name assets. Exclude property exempt from creditors, such as protected homestead and exempt property, when measuring the summary administration limit (§ 735.201(2)).
4. Check the date of death against the small-estate tests. Disposition under § 735.304 needs the decedent to have been dead more than a year; summary administration is available at any size once the decedent has been dead more than 2 years.
5. Locate the will. A will in the decedent's possession must be deposited with the clerk within 10 days of learning of the death (§ 732.901). With a will, the sole-name assets go to the devisees through the proceeding in Table 2.
6. Pick the proceeding and the county. Venue is the Florida county where the decedent was domiciled; for a nonresident, any county where the decedent's property is located (§ 733.101(1)).
What skipping probate does not change
Debts. A debt does not end at death, and the estate owes it, not the family, except for a co-signer or a spouse in some cases (FTC, Dealing with a deceased relative's debt). Assets in a revocable trust remain liable for the estate's expenses and obligations if the probate estate cannot pay them (§ 733.707(3); § 736.05053). People who receive property under a summary administration order, or under a small-estate affidavit, are personally liable to creditors up to the value they receive (§ 735.206(4)(e); § 735.303(6)).
Creditor cut-off. A formal administration starts the 3-month claims period from the first publication of the notice to creditors (§ 733.702(1)). Claims are barred 2 years after death whether or not an estate is opened (§ 733.710). A family that skips probate gets the 2-year bar but not the shorter period.
Privacy. Court records are public unless a rule or statute makes them confidential (Fla. R. Gen. Prac. & Jud. Admin. 2.420(a)). A deposited will and the petition are court records. Inventories and accountings filed with the clerk are confidential and exempt from public records disclosure, though an interested person, the personal representative and the personal representative's attorney may see them (§ 733.604(1)(b)). A trustee of a trust that must contribute to the estate's expenses files a notice of trust, which lists the settlor's name, date of death, trust title and date, and trustee name and address, not the trust's terms (§ 736.05055).
Time. Even the simplest formal estate stays open at least through the 3-month claims period, and the Florida Bar's pamphlet says a simple estate can take about five or six months (updated January 2021). A summary administration has no required claims period, but a petitioner who publishes a notice to creditors after the order bars unknown creditors 3 months after first publication (§ 735.2063).
Cost. Court filing fees are capped by § 28.2401. Attorney and personal representative compensation schedules are in the cost guide.
Cases that look like exceptions
- Surviving spouse and homestead. Homestead real property that the owner could not devise (because a spouse or minor child survived) descends under § 732.401: a life estate to the spouse with a vested remainder to descendants, or the spouse's election of an undivided one-half interest within 6 months. The personal representative takes possession of protected homestead only to preserve and insure it pending a determination (§ 733.607(1); § 733.608(2)). A court can determine protected homestead status on petition (Fla. Prob. R. 5.405). See what a homestead protects.
- Nonresident decedent with Florida property. The Florida property needs an ancillary proceeding in Florida (§ 734.102) even if the home state is already probating the estate. See ancillary probate in Florida.
- Joint account at one bank, sole account at another. The joint account passes to the survivor under § 655.79. The sole account is measured against Table 2.
- Everything has a beneficiary but one asset was missed. The missed asset is a probate asset. A pour-over will carries it to the trust and requires an estate proceeding for that asset (§ 732.513).
- Joint owners who are not spouses. Ownership "jointly" without express survivorship wording creates a tenancy in common (§ 689.15).
- A lawsuit or claim the decedent held. A claim the decedent owned at death is an estate asset, and a personal representative sues or settles it. See personal representative duties.
Sources
Last checked: October 17, 2026. Statutes are cited to the 2026 Florida Statutes on the Florida Senate site.
- § 731.201, Fla. Stat. (2026). General definitions (estate, protected homestead, minor).
- § 735.201, Fla. Stat. (2026), § 735.203, § 735.206, § 735.2063, § 735.301, § 735.302, § 735.303 and § 735.304. Small estates.
- Ch. 2026-57, Laws of Fla. (CS/HB 1337), effective July 1, 2026.
- § 689.15, Fla. Stat. (2026). Estates by survivorship.
- § 655.79, Fla. Stat. (2026) and § 655.82. Joint and pay-on-death accounts.
- § 711.501, Fla. Stat. (2026), § 711.502 and § 711.506. Transfer-on-death security registration.
- § 222.13, Fla. Stat. (2026) and § 222.21. Life insurance; retirement plan creditor exemption.
- § 319.28, Fla. Stat. (2026). Transfer of vehicle ownership by operation of law.
- § 732.401, Fla. Stat. (2026), § 732.402, § 732.513 and § 732.901. Descent of homestead; exempt property; devises to trustee; production of wills.
- § 733.607, Fla. Stat. (2026), § 733.608, § 733.702, § 733.707, § 733.710, § 733.604 and § 736.05053, § 736.05055. Possession; claims; order of payment; trust liability; confidentiality; notice of trust.
- § 734.102, Fla. Stat. (2026) and § 734.1025. Ancillary administration.
- § 733.101, Fla. Stat. (2026). Venue of probate proceedings.
- § 28.2401, Fla. Stat. (2026). Probate filing fees.
- Art. X, § 4, Fla. Const.. Homestead.
- Fla. Prob. R. 5.200, 5.405 and 5.530 and Fla. R. Gen. Prac. & Jud. Admin. 2.420, The Florida Bar rules page (Probate Rules October 15, 2026 edition; General Practice Rules July 1, 2026 edition).
- The Florida Bar, Probate in Florida and The Revocable Trust in Florida (consumer pamphlets, updated January 2021 and December 2018).
- Ninth Judicial Circuit, Checklist for Summary Administration (revised October 31, 2022; page 3 states "Does not exceed $75,000"). Cited only to show that local forms can lag the 2026 statute.
- FTC, Dealing with a deceased relative's debt.
What people ask us about this.
If everything has a beneficiary, can probate be skipped entirely?
What assets are exempt from probate in Florida?
What is the probate threshold in Florida for 2026?
What if I'm not sure there is a will?
How do I know whether a trust was funded?
Can unsecured creditors collect from heirs?
Are wills public record in Florida?
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