The non-citizen spouse problem

One of the most common surprises for immigrant families involves the federal estate tax marital deduction. When a U.S. citizen dies and leaves assets to a U.S. citizen spouse, the unlimited marital deduction generally lets those assets pass with no federal estate tax. But that unlimited deduction does not apply when the surviving spouse is not a U.S. citizen, even if that spouse is a lawful permanent resident living here in Miami.

The tool that fixes this is a Qualified Domestic Trust, or QDOT. A properly drafted QDOT lets a non-citizen surviving spouse benefit from the trust assets while preserving the deferral of estate tax that citizen couples take for granted. This is a technical, requirement-heavy structure, and it has to be in place before death to work. If your spouse holds a green card rather than citizenship, this is not optional planning, it is essential.

Estate tax exposure for non-resident clients

Immigration status also changes how the federal estate tax reaches your assets. Non-resident aliens who own U.S. situs property, such as Florida real estate or shares in a U.S. company, can face estate tax on those assets with a far smaller exemption than citizens and residents receive. If you split time between Miami and another country, or you hold property here but have not established domicile, your exposure may be very different from your American-born neighbor’s. Coordinating your immigration status with your estate plan is the only way to see the real picture.

How status affects your heirs

Your beneficiaries’ immigration status matters too. A relative living abroad or in uncertain status can still inherit, but distributions, trustee selection, and timing all deserve thought. Naming a guardian for minor children is especially important for immigrant parents. If both parents travel for visa interviews or face removal proceedings, a clear guardianship designation under Florida law decides who cares for your children, rather than leaving it to a court that does not know your family.

Florida-specific rules you cannot ignore

Florida law adds its own layer. Your will must meet the execution formalities of Florida Statutes §732.502, signed and witnessed correctly, or it may fail entirely. Florida’s constitutional homestead protections shield your primary residence from most creditors and restrict how it can be devised, which can interact in complicated ways with mixed-citizenship families. Revocable and irrevocable trusts are governed by Chapter 736, the Florida Trust Code, and a well-structured trust can keep your business and real estate out of probate while you continue running things.

Powers of attorney for clients who travel

Immigration cases require travel, sometimes on short notice and sometimes for months. A durable power of attorney and a health care surrogate designation ensure that someone you trust can sign documents, pay payroll, and keep your Miami business operating while you are at a consulate abroad. Without these, your company can stall the moment you board a plane.

Why you need both kinds of counsel

Our firm handles estate planning, not immigration. The two have to be coordinated, though, because a pending green-card or naturalization case can change the smartest sequence for setting up a QDOT, a trust, or a gifting strategy. That is why we work alongside dedicated immigration counsel. For the immigration side, we recommend Fitenko Law, including their work on marriage-based green cards, which directly affects the marital deduction questions above. Many of our clients are more comfortable explaining sensitive family details to a Russian-speaking immigration attorney, and we are glad to coordinate with their team on your behalf.

If you have built a business in Miami and your immigration journey is not finished, do not wait for the case to close before you plan. An estate plan that ignores citizenship status, and an immigration strategy that ignores estate tax, are both incomplete. Bringing the two together protects your family, your company, and everything you came here to build.

Start by Identifying How Assets Were Titled

The dividing line is ownership at death. Run through the assets:

• Assets held in the name of a revocable living trust are administered through trust administration under Florida’s trust code, not court probate.
• Assets owned in the decedent’s individual name with no beneficiary designation generally go through probate.
• Accounts with payable-on-death or transfer-on-death designations, joint accounts with survivorship, and life insurance with named beneficiaries pass outside both processes.

Many Miami estates involve a mix, so you may deal with trust administration and probate at the same time.

Court Involvement: The Biggest Difference

Probate is a court-supervised process filed in the Miami-Dade probate division. A judge oversees the appointment of the personal representative and the closing of the estate. Trust administration is handled privately by the successor trustee without ongoing court supervision, although the trustee still has duties enforceable in court if challenged.

Privacy

Probate filings become part of the public court record, so anyone can review the will and the inventory. A revocable trust is a private document. For Miami families who value discretion, this privacy is one of the main reasons trusts are used.

Timeline and Cost

Probate timelines depend on the type of administration. Summary administration is available for smaller estates or where the death occurred more than two years ago and can be relatively quick. Formal administration takes longer because of the creditor claim period and court steps. Trust administration can often move faster since it avoids many court filings, though the trustee must still notify beneficiaries, settle debts, and may give notice to creditors.

Notice to Creditors

Both processes must reckon with creditors. In probate, the representative publishes and serves a notice to creditors and handles claims through the court. A Florida trustee can also serve notice to creditors to shorten the claim period, but it is an optional step that requires care. Either way, valid debts and taxes must be addressed before distribution.

Homestead Is Handled in Both

A Miami home that qualifies as Florida homestead under Article X, Section 4 of the state constitution gets special treatment regardless of the path. Homestead generally passes outside the probate estate and is shielded from most creditors, and restrictions limit how it can be devised when a spouse or minor child survives. Confirm homestead status early in either process.

Taxes Are the Same Either Way

Whether assets pass through probate or a trust, Florida imposes no state estate tax and no inheritance tax. The choice between the two processes is about oversight, privacy, and efficiency, not state death taxes.

What If There Is a Pour-Over Will?

Many trust-based plans include a pour-over will that moves any individually titled assets into the trust at death. If assets were left out of the trust, a probate may still be needed to pour them over, which is why families with trusts sometimes still see the courthouse.

Consult a Florida Probate and Trust Attorney

Sorting trust assets from probate assets, and running each process correctly, takes Florida-specific knowledge. Before you act as a trustee or personal representative in Miami-Dade, consult a licensed Florida attorney to confirm which path applies and to administer it properly.

Step 1: Understand who inherits under Florida law

Florida’s intestate scheme is specific and sometimes surprising to families:

• Spouse, no descendants: the spouse takes everything.
• Spouse and descendants who are all shared with that spouse (and the spouse has no other children): the spouse takes everything.
• Spouse plus descendants from another relationship (on either side): the spouse takes half, the descendants split the other half.
• No spouse: descendants inherit; if none, the estate climbs to parents, then siblings, and outward.

Note what’s missing: an unmarried partner inherits nothing under intestacy. Given how many Miami couples cohabit without marrying, this catches families off guard.

Step 2: Open formal administration and appoint a representative

With no will, there’s no nominated personal representative. Florida §733.301 sets the priority: the surviving spouse first, then the person selected by a majority of the heirs, then the heir nearest in degree. Expect the court to require this person to post a bond unless the heirs waive it.

Step 3: Protect the homestead—it has its own rules

Florida homestead (Art. X, §4) does not follow the intestacy chart cleanly. If the decedent leaves a spouse and descendants, the spouse takes a life estate in the Miami homestead with a remainder to the descendants—or may elect a one-half tenancy-in-common interest instead. Homestead also stays protected from most creditors as it passes. Determine homestead status before assuming who owns the house.

Step 4: Inventory exempt and non-probate property

Some assets bypass intestacy entirely: jointly held property with survivorship, payable-on-death accounts, and life insurance or retirement accounts with named beneficiaries. A funded revocable trust (Chapter 736) also avoids probate. What remains in the decedent’s sole name is what the intestacy statute governs.

Step 5: Check whether summary administration fits

Even without a will, an estate with $75,000 or less in non-exempt assets—or where death occurred more than two years ago—may qualify for summary administration, sparing the family the full formal process.

A note on taxes and timing

Florida imposes no state estate or inheritance tax, so dying intestate doesn’t trigger a Florida death tax. The main cost is time: locating heirs, especially in Miami’s internationally connected families, can extend the process.

Consult a Florida attorney

Intestacy outcomes rarely match what families expected. Before distributing anything, a licensed Florida probate attorney can confirm the heirs, the homestead result, and the right administration track for your Miami-Dade estate.

Removing or replacing a Florida personal representative means asking the probate court to revoke the authority of the person currently administering an estate and, in most cases, appoint a successor in their place. Under Florida law, a court can remove a personal representative for specific statutory reasons—such as mismanagement, a conflict of interest, or simple failure to do the job—but removal is never automatic. Someone with standing has to file a petition, prove a ground for removal, and persuade the judge that the change serves the estate’s beneficiaries.

I’ve handled both sides of these disputes in Miami-Dade probate court: representing beneficiaries who watched an estate stall for two years, and defending personal representatives who were doing everything right but had become the target of an unhappy relative. The mechanics are the same either way, and they reward people who understand the statute before they file anything.

What a Florida personal representative actually does

In Florida, the person who manages a decedent’s estate is called the personal representative—not an “executor” or “administrator,” though you’ll hear those older terms used interchangeably. The personal representative collects assets, pays valid debts and taxes, and distributes what’s left to the heirs or beneficiaries. It is a fiduciary role, which is a precise legal word: it means the personal representative owes the estate and its beneficiaries the highest duty of loyalty and care the law recognizes.

That fiduciary status is the whole game when it comes to removal. You don’t get to remove someone because you dislike them, because they’re slow in a way that frustrates you, or because you wanted the job and didn’t get it. You remove them because they have breached—or are about to breach—the duties the role demands.

How someone becomes personal representative in the first place

If the decedent left a valid will, it usually nominates a personal representative, and the court appoints that person unless they’re disqualified. When there’s no will—an intestate estate—Florida Statutes section 733.301 sets the order of preference. The surviving spouse has first priority, then the person selected by a majority of the heirs, then the heir nearest in degree of kinship. This intestate succession order matters for removal, because the same statute that decides who gets appointed often decides who gets appointed next after a removal.

Who is qualified to serve—and who is not

Before you reach the question of removal, it’s worth knowing that some people are barred from serving at all. Florida Statutes section 733.303 disqualifies anyone who:

• Has been convicted of a felony;
• Is mentally or physically unable to perform the duties; or
• Is under the age of 18.

There’s also a residency rule that trips up a lot of out-of-state families. Under section 733.304, a nonresident of Florida cannot serve as personal representative unless they are a close relative of the decedent—a spouse, parent, child, sibling, or certain other blood or adoptive kin—or the spouse of such a relative. A friend who lives in New Jersey, no matter how trustworthy, generally cannot serve over a Florida estate. If a disqualified person somehow got appointed, that disqualification is itself a ground for removal.

Statutory grounds for removing a Florida personal representative

This is the heart of the matter. Florida Statutes section 733.504 lists the grounds for removal, and a judge will expect you to point to one of them. The statute is specific, and the more specific your evidence, the stronger your petition. The recognized grounds include:

1. Adjudication of incapacity or physical or mental incapacity rendering the personal representative incapable of serving;
2. Failure to comply with a court order, unless the order has been superseded on appeal;
3. Failure to account or to perform any duty pertaining to the office;
4. Wasting or maladministration of the estate;
5. Failure to give bond or security for any purpose;
6. Conviction of a felony after appointment;
7. Insolvency of, or the appointment of a receiver or liquidator for, a corporate personal representative;
8. Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration as a whole (the statute carves out an exception for interests the decedent already knew about);
9. Revocation of the probate of the decedent’s will that authorized the appointment;
10. Removal of domicile from Florida and, in the case of a nonresident, failure to maintain a registered agent; and
11. The personal representative would not now be entitled to appointment—meaning circumstances have changed so that they’d no longer qualify under sections 733.301–733.305.

Notice what’s not on this list: “the beneficiaries don’t get along with this person.” Personality conflict alone is not a ground. Florida courts have repeatedly held that hostility between a personal representative and the beneficiaries, by itself, is not enough—although hostility that actually impairs the administration can tip into “maladministration” or a conflicting interest. The line is whether the dispute is hurting the estate, not whether it’s making everyone miserable.

The grounds that show up most often in Miami estates

In practice, a handful of these dominate the docket. Failure to account is the single most common complaint I see—a personal representative who never files the inventory or the annual accounting the rules require, leaving beneficiaries in the dark about what the estate holds. Self-dealing and conflicts of interest come a close second: the relative who pays themselves an unjustified fee, sells estate property to a friend below market, or moves into the decedent’s house and stops paying anything. And waste—letting a property go into foreclosure, missing tax deadlines, allowing assets to deteriorate—is the kind of harm that judges take seriously because the damage is concrete and measurable.

How the removal process works in probate court

Removing a personal representative is a litigated proceeding, governed by the Florida Probate Rules. Here’s the realistic sequence.

1. Confirm you have standing

Only an “interested person” can petition for removal—generally a beneficiary, an heir in an intestate estate, a creditor whose claim is affected, or a co-personal representative. If you have no stake in the outcome, you have no standing, and the petition won’t survive.

2. File a petition for removal

The petition is filed in the same probate case, in the circuit court where the estate is pending—for a Miami estate, that’s the Probate Division of the Eleventh Judicial Circuit in Miami-Dade County. It must state the specific statutory ground or grounds and the facts supporting them. Vague accusations get dismissed; dated, documented facts get hearings.

3. Serve formal notice on all interested persons

The personal representative and other interested parties must receive formal notice and an opportunity to respond. This is not optional, and skipping it is one of the fastest ways to lose.

4. The hearing—and the possibility of suspension

At the hearing, you carry the burden of proving the ground for removal. The court may also exercise its power under Florida Statutes section 733.505 to enter an order restraining a personal representative, or under section 733.506 to suspend their powers and appoint a curator to protect the estate while the dispute is resolved. A curator is a temporary, court-appointed custodian—essentially a placeholder who safeguards assets when there’s a credible risk of harm but the removal question hasn’t been finally decided.

5. Appointment of a successor

If the court removes the personal representative, the administration doesn’t end—it continues with a new fiduciary. The successor is chosen under the same priority rules that governed the original appointment, and the removed representative must turn over all estate property and records and file a final accounting of their tenure. These same dynamics drive in other states as well, where contested fiduciary removals follow a closely parallel logic.

What happens to an intestate estate when the administrator is removed

When there’s no will, the stakes around removal feel higher to families, and for good reason: there’s no document expressing the decedent’s wishes about who should be in charge. The court is working purely from the statutory order of preference.

Say a decedent’s adult son was appointed administrator of an intestate Miami estate because the other heirs agreed to it, and he then stops responding, never files an inventory, and lets the homestead property fall behind on its taxes. If the court removes him, it doesn’t hand the estate to whoever filed the petition. It goes back to section 733.301: the heirs can again select someone by majority, or the court appoints the heir nearest in kinship who is willing and qualified. Intestate removals frequently turn into a contest among siblings over who serves next, which is exactly why getting the appointment right the first time—and documenting everyone’s agreement—saves so much grief.

A note specific to Florida: homestead property has its own constitutional protections and often passes outside the probate estate entirely. A personal representative’s mishandling of a homestead can be a removal ground, but the homestead analysis itself is separate from ordinary estate assets. Don’t assume the two move together.

Common mistakes that sink a removal petition

• Treating slowness as a ground. Probate legitimately takes months. “Too slow” only becomes actionable when it crosses into failure to perform a specific required duty, like filing an overdue accounting after a court order.
• Filing on emotion instead of evidence. Judges want bank statements, missed deadlines, and documented self-dealing—not a narrative about family resentment.
• Ignoring the bond. If the personal representative was bonded, a removal for waste may also implicate a claim against the surety bond. Many families leave that recovery on the table.
• Forgetting the successor problem. Remove the current representative without a viable, qualified successor lined up, and you can leave the estate in limbo—sometimes worse off than before.

When to call a Miami probate attorney

Removal litigation is one of the few areas of probate where doing it yourself is genuinely dangerous. The statutory grounds are narrow, the notice requirements are strict, and a poorly pleaded petition can not only fail but expose the petitioner to a fee award. If you’re a beneficiary who can’t get answers, or a personal representative being threatened with removal, the early move is to get a clear-eyed read on whether a recognized ground actually exists.

Our firm handles contested Florida estate matters and works alongside Morgan Legal’s broader network, including its and its New York team handling for families with assets in multiple states. You can also review our overview of Florida probate and how a will affects who serves as personal representative, or reach us directly through our contact page to discuss your situation.

Whether you need to remove a fiduciary who has failed the estate or defend yourself against an unfounded petition, the path runs through the same statutes—and the side that knows them cold usually prevails.

Frequently Asked Questions

What are the legal grounds to remove a personal representative in Florida?

Florida Statutes section 733.504 lists the grounds, including incapacity, failure to comply with a court order, failure to account or perform duties, waste or maladministration of the estate, failure to give bond, conviction of a felony after appointment, holding interests adverse to the estate, and no longer being qualified to serve. You must prove a specific statutory ground; mere dislike or personality conflict is not enough.

Can a beneficiary remove the personal representative of an estate?

A beneficiary cannot remove a personal representative directly, but as an interested person they can petition the probate court to do so. The beneficiary must show standing, allege a specific statutory ground under section 733.504, serve formal notice on interested parties, and prove the ground at a hearing. The judge—not the beneficiary—decides whether removal is warranted.

What happens to an intestate estate after the administrator is removed?

Administration continues with a successor rather than ending. Because there is no will, the court applies the order of preference in Florida Statutes section 733.301: the surviving spouse, then a person selected by a majority of the heirs, then the heir nearest in kinship who is willing and qualified. The removed administrator must turn over all assets and records and file a final accounting.

How long does it take to remove a personal representative in Florida?

It varies widely. A clear, well-documented case—such as a removal after a court order is ignored—can move in a few months. Contested removals involving accountings, discovery, and disputes over a successor can take much longer. If the estate is at immediate risk, the court can suspend the representative’s powers and appoint a curator under section 733.506 while the case proceeds.

Can an out-of-state person serve as personal representative of a Florida estate?

Often not. Under Florida Statutes section 733.304, a nonresident may serve only if they are a close relative of the decedent—such as a spouse, parent, child, or sibling—or the spouse of such a relative. A nonresident who does not meet this relationship requirement is disqualified, and an improper appointment can itself be a ground for removal.

I’ve sat on both sides of these disputes here in Miami-Dade: defending a will the family thought was airtight, and dismantling one that a late-arriving caregiver clearly engineered. What follows is a working explanation of who can contest, the grounds Florida recognizes, the deadlines that quietly end most challenges before they start, and what actually happens once you file.

Who has the right to contest a will in Florida?

Not just anyone who feels slighted can challenge a will. Florida law limits standing to “interested persons” — people whose financial stake in the estate would change if the will were thrown out. In practice that usually means:

• A beneficiary named in the current will (or a prior will) who would receive more under a different outcome.
• An heir at law — a spouse, child, or other relative who would inherit under Florida’s intestacy rules if the will failed.
• A creditor of the estate, in narrower circumstances tied to their claim.

The threshold question is always the same: if you win, do you end up better off? A disinherited adult child who would inherit under intestacy has standing. A friend who was promised something verbally but appears nowhere in any document generally does not. Standing gets litigated early, and a contest can be dismissed at the gate if the challenger has nothing to gain.

The legal grounds for contesting a will

Florida recognizes a finite set of grounds. A will contest is not an appeal of how generous or fair the testator was — courts will not rewrite an unfair-looking will if it was validly made. You have to fit your challenge into one of the categories below.

Improper execution (formalities not met)

Florida has strict signing requirements under Florida Statutes section 732.502. The will must be signed by the testator (or by someone at the testator’s direction, in their presence) at the end of the document, and it must be signed by two attesting witnesses who sign in the presence of the testator and of each other. Miss any of these steps and the will can be invalidated, no matter how clearly it reflects the person’s wishes. This is the cleanest, most provable ground when the defect exists — it turns on what the document and witnesses show, not on guesses about a dead person’s state of mind. Florida does not recognize holographic (handwritten, unwitnessed) wills, and nuncupative (oral) wills are not valid either.

Lack of testamentary capacity

To make a valid will, the testator must have had a “sound mind” at the moment of signing. Under Florida law that means they understood, in a general way, the nature and extent of their property, the natural objects of their bounty (typically their close family), and that the document they were signing distributed that property at death. The bar is lower than people expect. A person can be forgetful, physically frail, even diagnosed with early dementia, and still have a lucid interval sufficient to sign a valid will. The contest succeeds only if you can show incapacity at the time of execution — which is why medical records, the drafting attorney’s notes, and witness recollections from that specific window matter so much.

Undue influence

This is the ground I see most often in Miami probate fights, and it’s the one that fits the suspicious deathbed change. Undue influence means someone overpowered the testator’s free will — coercion, manipulation, or pressure that produced a will reflecting the influencer’s wishes rather than the testator’s. Florida courts use the framework from In re Estate of Carpenter to evaluate it. A presumption of undue influence can arise when a person who is a substantial beneficiary occupied a confidential or fiduciary relationship with the testator and was actively procuring the will. Courts weigh factors such as:

1. Whether the beneficiary was present when the will was executed.
2. Whether they were present when the testator expressed a desire to make the will.
3. Whether they recommended or selected the drafting attorney.
4. Whether they knew the will’s contents before signing.
5. Whether they gave instructions to the attorney.
6. Whether they secured witnesses.
7. Whether they kept the executed will in their possession afterward.

No single factor decides it. When enough of them stack up — a new caregiver who picks the lawyer, drives the testator to the signing, and walks out with the original — the burden can shift to that beneficiary to prove the will was the testator’s true intent.

Fraud, duress, and mistake

Fraud comes in two flavors. Fraud in the execution means the testator was deceived about what they were actually signing. Fraud in the inducement means they knew they were signing a will but were fed lies that shaped its terms — for example, a false story that a child had stolen from them, told to provoke disinheritance. Duress involves threats or force. Mistake is narrower and harder; Florida is reluctant to reform a will based on a claimed drafting error, though it can matter in specific situations.

Revocation and forgery

A will offered for probate may already have been revoked — by a later will, a codicil, or a physical act like tearing or burning it with intent to revoke under section 732.505 and 732.506. And of course, a forged signature voids the instrument entirely. Both grounds shift the fight to documents and, often, handwriting experts.

The deadlines that end most contests

This is where good claims die. Once the personal representative serves formal notice of administration, an interested person generally has 90 days to file objections to the validity of the will, the venue, or the court’s jurisdiction, under Florida Statutes section 733.212. Miss that window and your objection is typically barred — forever. If you were served with notice and sat on your rights, no amount of damning evidence later will reopen the door in most cases.

There’s a related trap on the front end. Once the personal representative serves notice of the petition for administration, an interested party who wants to object to the appointment has a tight window as well. The takeaway is simple and unforgiving: the day you learn a probate has opened, talk to a lawyer. Florida probate deadlines are calendar-driven and rarely forgiven.

How the will contest process actually works

A contest doesn’t unfold like a TV courtroom. Here’s the realistic sequence in a Florida probate division.

• Petition or objection filed. The challenge usually starts as a written objection or a separate petition for revocation of probate in the same estate file in the circuit court where the estate is pending.
• Notice and response. The personal representative and other interested parties are served and respond. The estate’s administration may continue, though distributions can be paused while validity is in dispute.
• Discovery. This is the heart of the case — depositions of the drafting attorney and witnesses, subpoenas for medical and financial records, and sometimes a forensic handwriting or medical expert.
• Mediation. Florida courts frequently order probate disputes to mediation. A large share settle here, because litigation drains the very estate everyone is fighting over.
• Trial. If no settlement, a judge (probate matters are generally bench-tried, not jury-tried) hears the evidence and rules on validity.

The probate process is procedural and document-heavy even when no one is fighting; a contest layers an adversarial dispute on top of it. If you want a sense of how many moving parts a normal administration already has, this overview of the maps closely to what Florida families experience too. For estates that cross state lines — say, a Florida decedent with New York property — coordinating with counsel handling early can prevent two separate fights from colliding.

The in terrorem (no-contest) clause — why it usually doesn’t matter in Florida

Many wills contain a clause stating that any beneficiary who challenges the will forfeits their inheritance. In a lot of states these are enforceable and scare people off. In Florida, they are not. Under Florida Statutes section 732.517, a provision penalizing an interested person for contesting the will is unenforceable. That’s a deliberate policy choice: Florida would rather let legitimate challenges proceed than let a wrongdoer insulate a tainted will with a forfeiture threat. So if a Florida will waves a no-contest clause at you, it generally carries no legal teeth.

What happens when a will is thrown out

If a contest succeeds, the invalid will is set aside. The estate then passes under the most recent valid prior will, if one exists. If there is no earlier valid will, the estate is distributed under Florida’s intestacy statute (Chapter 732, Part I) — spouse and descendants first, then more remote relatives in a fixed order. This is the quiet irony of many contests: the goal is rarely to leave the estate to strangers, but to undo a document that derailed the family’s true plan and let the law’s default — or an earlier, cleaner will — control. For a deeper look at how Florida handles wills generally, see our pages on wills and the broader Florida probate process.

Practical advice from a Miami probate lawyer

Three things decide most contests, and none of them are dramatic. First, preserve evidence immediately — medical records, the original will, emails, and the names of everyone present at signing. Second, respect the clock; the 90-day objection deadline does not bend for good intentions. Third, be honest about cost-benefit. Litigation is funded out of the estate or your own pocket, and a modest estate can be eaten alive by a fight. Sometimes the right move is a negotiated resolution at mediation rather than a scorched-earth trial.

If you suspect a Florida will was forged, signed under pressure, or executed when your loved one no longer understood what they were doing, get an evaluation before the deadline runs. Our team handles contested and uncontested matters across South Florida and works with affiliated probate counsel through . You can also reach us directly through our contact page to discuss the specifics of your situation.

Frequently Asked Questions

How long do I have to contest a will in Florida?

In most cases you have 90 days from the date the personal representative serves you with the formal notice of administration to file an objection to the will’s validity, under Florida Statutes section 733.212. Missing that deadline almost always bars the challenge permanently, so it is critical to act as soon as you learn a probate has opened.

What are the most common grounds for contesting a will in Florida?

The recognized grounds are improper execution (the signing formalities under section 732.502 were not met), lack of testamentary capacity, undue influence, fraud, duress, mistake, revocation, and forgery. In Miami probate disputes, undue influence and lack of capacity are by far the most frequently litigated.

Can I be disinherited just for contesting a will in Florida?

No. Florida Statutes section 732.517 makes no-contest (in terrorem) clauses unenforceable. A provision threatening to take away your inheritance if you challenge the will carries no legal effect in Florida, so a good-faith contest will not forfeit your share.

Who is allowed to contest a will?

Only ‘interested persons’ have standing — typically beneficiaries named in the current or a prior will, heirs who would inherit under Florida’s intestacy laws if the will failed, and in limited cases creditors. The core test is whether you would be financially better off if the will were declared invalid.

What happens to the estate if a will is successfully contested?

If the will is set aside, the estate passes under the most recent valid earlier will. If no prior valid will exists, the estate is distributed under Florida’s intestacy statute, which directs property to the surviving spouse and descendants first, then to more remote relatives in a fixed statutory order.

Know the grounds to challenge a will

• Improper execution. Florida §732.502 requires the testator’s signature and two witnesses signing in each other’s presence. A defect here can void the will.
• Lack of testamentary capacity. The testator must have understood the nature of the act, the property, and the natural objects of their bounty at the time of signing.
• Undue influence. The classic Florida claim—a person in a confidential relationship who actively procured a will that benefits them. Florida courts weigh factors like presence at execution and securing witnesses.
• Fraud, duress, or mistake. Less common but recognized.

Confirm you have standing—and watch the clock

Only an “interested person” (a beneficiary, heir, or someone whose share is affected) can contest. Timing is critical: once the personal representative serves formal notice of administration, an interested person generally has a tight window—often as short as three months from service—to file objections. Miss it and the claim can be barred. Calendar these dates the moment you receive papers from probate.

Beware the no-contest clause that doesn’t bite

Many wills drafted elsewhere include “in terrorem” clauses disinheriting anyone who challenges. In Florida, §732.517 makes such penalty clauses unenforceable as to wills. The same rule applies to revocable trusts under Chapter 736. So a Miami beneficiary contesting in good faith generally won’t forfeit a bequest merely for raising a legitimate challenge.

Gather evidence early

Will contests are fact-intensive. Useful proof includes the drafting attorney’s file and notes, medical records bearing on capacity, the testator’s medications, witness recollections, financial records showing sudden changes, and the timeline of who was involved when the will was signed. In undue-influence cases, the relationship and the influencer’s role in arranging the will often decide the outcome.

Don’t forget spousal rights

Sometimes the real remedy isn’t voiding the will but enforcing the surviving spouse’s elective share under §732.2065 and following—30% of the elective estate—plus Florida homestead protections (Art. X, §4). A spouse left out of a Miami will may have powerful statutory rights without ever proving the will invalid.

Consider mediation

Miami-Dade’s probate division frequently refers contested matters to mediation. Litigation drains estate value and relationships; many disputes resolve through a negotiated split that the court can approve.

Consult a Florida attorney

Will contests have short deadlines and high stakes. If you’re considering challenging or defending a will in Miami-Dade, talk to a licensed Florida probate litigation attorney promptly so you don’t lose rights to a missed deadline.

This is one of the most misunderstood corners of estate administration. A New Jersey retiree buys a condo in Miami Beach, passes away, and the family assumes the New York or New Jersey estate handles everything. It doesn’t. The Florida real estate has to be addressed by a Florida court, in a Florida county, often with a Florida attorney of record. Below is how that actually works, what changes when there’s no will, and where families most often get tripped up.

What ancillary probate means in Florida

Probate is the court-supervised process of settling a deceased person’s estate — paying debts, resolving claims, and moving titled assets to the rightful heirs or beneficiaries. The primary (or “domiciliary”) probate happens in the state where the person legally lived at death. That estate has authority over assets in the home state and over personal property generally.

Real property is different. Land and the buildings on it are governed by the law of the state where they physically sit — a principle called lex situs. So if a Connecticut resident dies owning a house in Broward County, the Connecticut court cannot, on its own, sign over a Florida deed. A Florida court has to open an ancillary administration to do that. Florida’s ancillary statute, Fla. Stat. § 734.102, is the controlling authority.

“Ancillary” simply means secondary or supplementary. It rides alongside the main estate. It is not a do-over of the entire estate — it exists to deal with the Florida-situated assets and any creditor claims that arise here.

When ancillary probate is actually required

You generally need a Florida ancillary administration when a non-resident dies owning, in their own name, one or more of the following inside Florida:

• Real estate — a home, condo, vacant lot, timeshare interest held as real property, or commercial building
• A Florida-based business interest or partnership share titled to the decedent
• Tangible personal property physically located in Florida (less common as a standalone trigger)
• Debts owed to the decedent by a Florida resident or entity

You typically do not need ancillary probate when the Florida asset already passes by operation of law — for example, property held as joint tenants with right of survivorship, a homestead that passes to a surviving spouse, accounts with payable-on-death designations, or real estate that was retitled into a living trust before death. Those instruments sidestep probate entirely, which is exactly why advance planning matters so much for snowbirds.

How ancillary probate changes when there is no will (intestacy)

Here is the point that surprises families most. People assume that if their parent died with a valid will in their home state, that will controls the Florida house. Often it does — Florida will admit a properly executed foreign will to ancillary probate. But when the person died intestate (with no will at all, or with a will that fails for some reason), the Florida real estate is distributed according to Florida’s intestate succession statutes, found in Chapter 732 of the Florida Statutes.

That can produce a different result than the heirship rules of the state where the person lived. Florida’s scheme under § 732.102 and § 732.103 works in tiers. A simplified version:

1. If there is a surviving spouse and no descendants, the spouse takes the entire intestate estate.
2. If there is a surviving spouse and descendants, and all descendants are also descendants of that spouse (and the spouse has no other descendants), the spouse takes everything.
3. If the spouse or the decedent has descendants from another relationship, the spouse takes one-half and the descendants split the rest.
4. With no surviving spouse, the estate passes to descendants; failing that, to parents, then siblings, then more remote kin under the statute’s order.

Because the analysis is fact-specific — blended families, predeceased children, and per stirpes distribution all matter — intestate ancillary cases reward careful attention to who the legal heirs actually are. Two states can reach two different answers on the same family. Florida law governs the Florida dirt.

For a clean picture of how a will would have changed this, see our overview of why a Florida will matters for non-residents. The contrast is stark: a few paragraphs of estate planning can replace a court determining your heirs by statute.

The ancillary probate process, step by step

1. Open the case in the right Florida county

The ancillary administration is filed in the circuit court for the county where the Florida property is located — Miami-Dade County for property in Miami, for example. The personal representative (Florida’s term for executor or administrator) petitions the court, and if there is a domiciliary estate already underway, the court can give effect to that estate’s appointment under § 734.102.

2. Appoint a qualified personal representative

Florida has eligibility rules for who can serve. A non-resident can serve as personal representative only if they are closely related to the decedent — broadly, a spouse, parent, sibling, child, or other close relative (or someone related to such a person). A non-relative friend who lives out of state cannot serve. This catches families off guard constantly. When a foreign executor is not Florida-qualified, the court may admit the foreign will and appoint a Florida-eligible person instead.

3. Provide notice to creditors and handle claims

Florida requires notice to creditors. The personal representative publishes notice and serves known or reasonably ascertainable creditors. Creditors then have a limited window to file claims — generally the later of three months from first publication or thirty days from being served, under Fla. Stat. § 733.702 and § 733.2121. An outer limitation of two years from the date of death also applies under § 733.710. Getting this notice right is what ultimately protects the heirs and the buyer of the property from surprise claims later.

4. Clear title and distribute

Once claims and administration costs are resolved, the court authorizes transfer of the Florida property to the heirs (intestate) or beneficiaries (testate). At that point the heirs can hold, sell, or refinance with clean, marketable title — which is the whole reason the proceeding exists.

Summary vs. formal ancillary administration

Florida offers a lighter-weight path in the right cases. Summary administration is available under Chapter 735 when the value of the Florida probate estate (excluding exempt property) is $75,000 or less, or when the decedent has been dead for more than two years. Many out-of-state cases qualify on the two-year ground alone — families often discover the title problem only when they try to sell, years after the death.

Summary administration is faster and cheaper because there is no appointed personal representative and no full creditor administration. The trade-off is that it provides fewer tools for a contested estate or one with active debts. Formal administration — the full proceeding with an appointed personal representative — is the right choice for larger estates, disputed heirship, or situations needing active management of the property. An experienced probate attorney will steer you to the correct track at the outset; choosing wrong wastes months.

Common mistakes out-of-state families make

• Assuming the home-state estate covers the Florida house. It does not. Florida real estate needs a Florida proceeding.
• Trying to sell before clearing title. A title company will flag the gap, and the closing dies. Resolve probate first.
• Naming an out-of-state non-relative as executor. Florida’s qualification rules may bar that person from serving here.
• Letting the two-year creditor cutoff confuse them. The two-year bar can simplify a sale, but it does not eliminate the need to convey title properly.
• Ignoring intestacy differences. If there is no will, Florida’s heirship rules — not the home state’s — decide who inherits the Florida property.

How this connects to multi-state estates

Ancillary probate rarely happens in a vacuum. Most of these cases involve a primary estate elsewhere — frequently in New York for the snowbird population that splits time between the Northeast and South Florida. Coordinating the two proceedings matters, and the rules differ by state. If your loved one’s main estate is in New York, our colleagues handle the and can explain how it interacts with a Florida ancillary case. It’s also worth understanding that states categorize these matters differently — this breakdown of the shows how a domiciliary estate is structured before the Florida piece is added on.

For the Florida side specifically, our Florida team focuses on and routinely coordinates with out-of-state counsel so the two estates move in sync rather than stepping on each other.

When to call a Florida probate attorney

Florida formal administration requires an attorney of record in nearly all cases, so this is not a true do-it-yourself process. Beyond the rule, the judgment calls — summary versus formal, who qualifies to serve, how intestate heirs are determined, how to handle creditor notice so a future sale is clean — are exactly where good counsel saves families money and months. If you’ve inherited Florida property from an out-of-state relative, or you’re planning ahead so your own heirs never face this, reach out through our contact page for a focused review of the estate.

Frequently Asked Questions

Do I need ancillary probate if my parent had a will in another state?

Often yes. A valid out-of-state will can be admitted to Florida ancillary probate, but you still need a Florida proceeding to transfer Florida real estate. The home-state will does not, by itself, convey a Florida deed — only a Florida court can clear title to property located in Florida under Fla. Stat. 734.102.

What happens to a Florida house if the out-of-state owner died with no will?

The Florida real estate passes under Florida’s intestate succession statutes in Chapter 732, not the heirship rules of the state where the person lived. The result depends on whether there is a surviving spouse and descendants, and can differ from what the home state would have decided.

Can ancillary probate be avoided in Florida?

Yes, with planning. Florida property titled in a living trust, held as joint tenants with right of survivorship, or covered by survivorship and beneficiary designations passes outside probate. Homestead passing to a surviving spouse may also avoid ancillary administration. Without those tools in place before death, a Florida proceeding is usually required.

How long does Florida ancillary probate take?

Summary administration can finish in a few weeks to a couple of months when the estate qualifies (Florida probate value of $75,000 or less, or the decedent dead more than two years). Formal administration typically runs several months to a year, largely because of the creditor-claim period and court scheduling.

Which Florida county handles the ancillary case?

You file in the circuit court for the county where the Florida property is located. For property in Miami, that is Miami-Dade County. If the property spans counties, an attorney can advise on proper venue.

I’ve handled enough Miami probate matters to tell you that the financial and digital side is where families get stuck the longest. A house has a deed. A car has a title. But a Coinbase wallet, a Zelle-linked checking account, and a decade of PayPal transactions? Those can sit frozen for months if nobody knows how to ask for them properly. This article walks through how it actually works in Florida when there is no will.

What Counts as a Financial or Digital Asset in Probate

Before you can administer anything, you have to know what category it falls into. Florida probate treats assets differently depending on how they’re titled and whether a beneficiary was named.

Broadly, the accounts you’ll encounter break down like this:

• Traditional financial accounts — checking, savings, certificates of deposit, money market accounts, and brokerage or investment accounts held in the decedent’s sole name.
• Retirement and insurance accounts — IRAs, 401(k)s, annuities, and life insurance, which usually pass by beneficiary designation outside probate.
• Digital financial assets — cryptocurrency wallets, exchange accounts (Coinbase, Kraken, Binance.US), Venmo and PayPal balances, and online-only bank accounts.
• Non-financial digital assets — email accounts, cloud storage, photo libraries, social media profiles, domain names, and loyalty or rewards points.
• Digital assets with hidden value — a monetized YouTube channel, an Etsy or eBay seller account, or an Amazon KDP royalty stream that keeps paying after death.

The Probate vs. Non-Probate Line

Here’s the distinction that matters most. A solely owned bank account with no payable-on-death (POD) designation is a probate asset — it can only be reached through a court-appointed personal representative. The same account with a named POD beneficiary, or held jointly with rights of survivorship, generally bypasses probate entirely. Cryptocurrency held in a self-custody wallet has no beneficiary mechanism at all, so it almost always lands in probate unless it was titled into a trust.

When someone dies intestate, far more of their assets tend to fall on the probate side of that line, simply because people who never wrote a will usually never set up POD designations or transfer-on-death registrations either.

How Intestate Succession Affects Who Inherits These Accounts

If there’s no will, Florida Statutes Chapter 732 controls who receives the financial accounts. The court doesn’t guess at intent; it applies a fixed hierarchy. Under section 732.102, a surviving spouse’s share depends on whether the decedent and the spouse had children together and whether either had children from other relationships. Section 732.103 then directs what passes to descendants, parents, or more distant relatives when there is no spouse.

This produces results that surprise families constantly. A long-term partner who was never married receives nothing under intestacy, no matter how many shared bank accounts existed. Adult children from a prior marriage may take a larger share of a checking account than the current spouse expects. These outcomes are statutory, and the digital nature of the asset changes nothing about who inherits it — a Bitcoin balance is distributed by the same rules as a savings account.

The Florida Probate Process for Accessing Accounts

Getting a bank or exchange to release funds follows a predictable sequence. The friction is almost never legal — it’s procedural and identity-driven.

1. Open the estate. File a petition for administration in the circuit court of the county where the decedent lived (in Miami, that’s the Eleventh Judicial Circuit, Miami-Dade County). For estates over $75,000, this is formal administration; smaller estates may qualify for summary administration under Florida Statutes section 735.201.
2. Get the personal representative appointed. Because there’s no will naming an executor, the court appoints a personal representative according to the priority in section 733.301 — surviving spouse first, then the person selected by a majority of heirs.
3. Obtain Letters of Administration. This is the single most important document. Banks and brokerages will not speak to you in any meaningful way without certified Letters proving your authority.
4. Inventory and demand. Serve the Letters, a certified death certificate, and a written demand on each institution. Most large banks have a dedicated estate or “deceased account services” department.
5. Collect, report, and distribute. Funds are deposited into an estate account, listed on the inventory filed under section 733.604, and ultimately distributed to the intestate heirs after creditors and expenses are paid.

The estate account piece trips people up. You cannot legally move a deceased person’s funds into your own account. The personal representative opens a separate estate checking account using the estate’s own tax identification number (an EIN from the IRS), and every dollar flows through it.

What Florida’s Digital Assets Law Lets a Personal Representative Do

Chapter 740 of the Florida Statutes — the Florida Fiduciary Access to Digital Assets Act — governs whether you can get into email, cloud accounts, and platform data. The law sets a three-tier order of priority. First, an online tool offered by the provider itself (Google’s Inactive Account Manager or Facebook’s legacy contact, for example) controls if the decedent used it. If not, the decedent’s will or trust language controls — but in an intestate estate, there is none. That throws you onto the third tier: the provider’s terms of service, plus a court order.

In practice, this means that for an intestate decedent who never set up a legacy contact, the personal representative often needs a specific court order directing the provider to disclose the contents of an account. A custodian like Google or Apple is permitted under Chapter 740 to require that order before turning over the content of communications. Plan for this. It is one of the most common delays in administering a modern estate.

Cryptocurrency: The Hardest Asset in Probate

Crypto deserves its own section because it breaks the normal recovery model. With a bank, the money exists whether or not you have the password — the institution holds it, and a court order forces disclosure. With self-custody cryptocurrency, the private key is the asset. If the only copy of a seed phrase died with the decedent, no court order, no personal representative, and no statute can recover those coins. They are mathematically unreachable.

Where crypto sits on a custodial exchange like Coinbase or Kraken, the situation improves dramatically. Those platforms have estate processes, and they’ll release holdings to a personal representative who provides Letters of Administration and a death certificate. So the first question I ask a family is always: was the crypto on an exchange or in a private wallet? The answer determines whether we’re doing paperwork or hunting for a piece of paper in a safe deposit box.

For probate purposes, valuation also matters. Cryptocurrency is volatile, so the inventory should reflect fair market value as of the date of death, and significant swings during administration may need to be documented for the heirs and the court.

Common Mistakes Families Make With Digital Estates

A few patterns repeat in nearly every digital-asset case that comes through a Miami probate practice:

• Logging in with the decedent’s password. It feels harmless, but accessing accounts without authority can violate provider terms and, in some cases, federal law. Wait for your Letters.
• Letting auto-payments drain the estate. Subscriptions, cloud storage, and recurring charges keep hitting a checking account long after death. Identify and cancel them early.
• Ignoring income-producing accounts. A seller account or monetized channel may owe the estate money — or owe taxes. Don’t let it lapse before it’s valued.
• Assuming small balances aren’t worth probate. Florida’s summary administration and the disposition-without-administration process under section 735.301 exist precisely for modest estates. There’s often a faster path.

When to Bring in a Probate Attorney

If the estate has nothing but a single jointly-held bank account, you may not need much help. But the moment you’re dealing with sole-name brokerage accounts, cryptocurrency, a court order to access a digital custodian, or intestate heirs who don’t agree on anything, you want experienced counsel guiding the administration. The mechanics of opening an estate, qualifying the personal representative, and serving demands on institutions are unforgiving of error, and a mistake can add months.

Our team focuses on exactly these situations across Miami and South Florida — you can learn more on our Florida probate overview or read about what happens to estates without a will. The same probate principles that govern these cases nationally are explained in depth by Morgan Legal’s New York office in their guide to , and where heirs dispute an estate, their breakdown of is a useful primer on the litigation that can follow. For Florida-specific representation, you can also reach the firm’s team directly.

Digital and financial accounts aren’t going to administer themselves, and in an intestate estate the clock starts the moment a relative tries to log in and gets locked out. If you’re facing that wall right now, contact our office and we’ll map out the fastest lawful route to the assets.

Frequently Asked Questions

Can a bank release a deceased person's account without probate in Florida?

Sometimes. If the account had a payable-on-death beneficiary or was jointly held with rights of survivorship, the bank can release it outside probate to the surviving owner or named beneficiary. But a solely owned account with no beneficiary designation is a probate asset, and the bank will only release it to a personal representative who presents certified Letters of Administration and a death certificate. Very small estates may also qualify for summary administration or disposition without administration under Chapter 735 of the Florida Statutes.

What happens to cryptocurrency in Florida probate if there is no will?

Cryptocurrency is distributed under Florida’s intestacy rules in Chapter 732, just like any other asset. Recovery depends on where it’s stored. Crypto on a custodial exchange like Coinbase can usually be released to the personal representative with Letters of Administration. Crypto in a self-custody wallet is only recoverable if the private key or seed phrase can be located — if that information was lost at death, no court order can retrieve it.

Can a personal representative access the decedent's email and social media accounts?

It depends. Florida’s Fiduciary Access to Digital Assets Act in Chapter 740 sets the order of priority. If the decedent used an online tool like Google’s Inactive Account Manager, that controls. Without a will or such a tool, the personal representative typically must rely on the provider’s terms of service and may need a specific court order to obtain the contents of communications, which custodians like Google and Apple are permitted to require.

Who inherits financial accounts in Florida when someone dies without a will?

Florida Statutes sections 732.102 and 732.103 control. A surviving spouse’s share depends on whether the couple had children together and whether either spouse had children from other relationships. If there is no spouse, the assets pass to descendants, then parents, then more distant relatives in a fixed statutory order. Unmarried partners inherit nothing under intestacy regardless of shared accounts.

Do digital assets have to be listed in the Florida probate inventory?

Yes. Any digital or financial asset that is a probate asset must be identified and reported on the inventory filed under Florida Statutes section 733.604, with a fair market value as of the date of death. For volatile assets like cryptocurrency, that valuation should reflect the date-of-death price, and significant changes during administration may need to be documented for the heirs and the court.

I see the confusion constantly in Miami-Dade. A daughter calls because her father is slipping into dementia and the bank won’t let her pay his bills, and in the same breath she mentions she’s “starting probate.” She isn’t. She needs a guardianship. The two get tangled because both run through the same probate division of the Circuit Court, both involve a judge supervising someone’s money, and both reach a peak of difficulty precisely when there is no plan—no power of attorney, no will, no trust. That last point matters enormously on the intestate side of estate work, so let’s pull the two apart carefully.

Guardianship in Florida: Protecting a Living Person Who Cannot Protect Themselves

Guardianship is what Florida law uses when an adult loses the capacity to make safe decisions about their health, their living situation, or their finances, and there is no valid advance plan in place to fill the gap. The governing law is the Florida Guardianship Law, Chapter 744, and the entire chapter is built around one stated preference: the least restrictive alternative. The Legislature wrote directly into the statute that alternatives to guardianship and less restrictive means of assistance should be explored before a plenary guardian is ever appointed.

That preference is not lip service. Before a Florida court strips an adult of the right to vote, marry, drive, or manage money, a specific process unfolds:

1. A petition to determine incapacity is filed, identifying the rights the person allegedly cannot exercise.
2. An examining committee of three members—typically including a physician or psychologist—evaluates the person and reports to the court on which specific capacities are lost.
3. A hearing is held at which the alleged incapacitated person is entitled to an attorney; if they cannot afford one, the court appoints counsel.
4. If the court finds incapacity, it appoints a guardian of the person, a guardian of the property, or both—removing only the rights the person genuinely cannot exercise.

Plenary, Limited, and Emergency Guardianships

Florida does not treat capacity as all-or-nothing. A plenary guardian exercises all delegable legal rights of the ward. A limited guardian handles only specific areas the person cannot manage—say, finances—while the ward keeps the rest. There is also the guardian advocate, a streamlined alternative under section 744.3085 for individuals with a developmental disability, which often avoids a full incapacity adjudication altogether.

When a person faces immediate harm—an unsigned check ruining their credit, an exploitative caregiver draining accounts, a hospital discharge with nowhere safe to go—Florida law allows an emergency temporary guardian under section 744.3031. The court can appoint one when there is an imminent danger that the person’s physical or mental health or safety will be seriously impaired. That authority is deliberately short: it expires 90 days after appointment, extendable for one additional 90-day period only on a showing that the emergency conditions persist, and the emergency temporary guardian must file a final report within 30 days after the emergency guardianship ends.

Why Guardianships Are Burdensome (and How to Avoid Them)

A guardianship is one of the most supervised, reportable relationships in Florida law. A guardian of the property must inventory assets, post a bond, obtain court approval for major transactions, and file an annual accounting that a judge actually reviews. None of that is required if the person planned ahead. A valid durable power of attorney and a health care surrogate designation usually make guardianship unnecessary, because they pre-appoint a trusted decision-maker without a courtroom. If you’re researching guardianship for a parent who is still competent, the most valuable thing you can do is read about wills and advance directives and get those documents signed while the choice is still theirs to make.

Probate in Florida: Settling the Estate of Someone Who Has Died

Probate is the court-supervised process of gathering a deceased person’s assets, paying their final debts and taxes, and distributing whatever remains to the rightful heirs or beneficiaries. It is governed by the Florida Probate Code—Chapters 731, 732, 733, 734, and 735—and unlike guardianship, it cannot begin until someone has died.

The word “probate” itself originally meant proving a will. But here is the point that defines our practice: probate happens whether or not there is a will. If the decedent left a valid will, the estate is testate and the will’s instructions control. If there is no will—or no valid will—the estate is intestate, and Florida’s intestate succession statute, section 732.102 and 732.103, dictates who inherits. The state writes the distribution plan the decedent never wrote for themselves.

Florida’s Three Probate Paths

• Formal administration — the standard process for estates of meaningful size, in which the court appoints a personal representative who must usually be represented by a Florida attorney.
• Summary administration — available when the estate’s non-exempt assets are valued at $75,000 or less, or when the decedent has been dead more than two years. It skips the appointment of a personal representative and is markedly faster.
• Disposition without administration — a limited path for very small estates where assets do not exceed final expenses and certain medical bills.

Intestacy and probate complexity go hand in hand. Without a will naming a personal representative, Florida law decides who has priority to serve—and family members can, and do, fight over that appointment. The distribution itself can surprise people: a surviving spouse does not automatically inherit everything if the decedent had children from a prior relationship. These outcomes are statutory, not negotiable, which is exactly why we encourage planning. For families confronting an estate without a will, our overview of Florida probate administration walks through the steps and timelines in detail.

Guardianship vs. Probate: The Distinctions That Actually Matter

Once you see the two side by side, the differences become concrete.

• Trigger event. Guardianship is triggered by incapacity during life. Probate is triggered by death.
• Governing law. Guardianship lives in Chapter 744. Probate lives in Chapters 731–735.
• Who is protected. Guardianship protects a living “ward.” Probate protects creditors and heirs of a deceased person and carries out the decedent’s wishes (or the state’s default rules).
• The decision-maker’s title. A guardianship appoints a guardian. Probate appoints a personal representative (what other states call an executor or administrator).
• Duration. A guardianship can last for years—potentially the rest of the ward’s life—with annual reporting. Probate is finite; it ends when the estate is distributed and closed.
• How planning avoids it. A power of attorney and health care surrogate can prevent guardianship. A will, trust, beneficiary designations, and joint titling can shrink or avoid probate.

How the Two Processes Connect

They frequently run in sequence. An elderly parent loses capacity, the family opens a guardianship, the guardian manages the parent’s affairs for several years, and then the parent dies. The guardianship terminates at death—a guardian’s authority does not survive the ward—and the same family pivots into probate to settle the estate. When that parent never signed a will, both processes are harder than they needed to be, because the court is making every default decision the family could have made for itself.

There is also overlap in the courtroom. In Miami-Dade County, both matters are heard in the Probate and Guardianship Division of the Eleventh Judicial Circuit, often by the same judges applying the same procedural rule set. The Florida Probate Rules govern both, which is part of why families assume they are one thing.

What This Means for an Estate Without a Will

Intestate estates are where the costs of these two systems compound. When a person dies without a will, the probate court applies Florida’s succession statute mechanically—and when that same person had earlier lost capacity without a power of attorney, the family typically endured a guardianship first. Two court proceedings, two sets of legal fees, two stretches of waiting, all because no documents existed to direct the outcome.

This is also where disputes ignite. Without clear instructions, heirs disagree about who should serve, how assets are valued, and whether someone exerted undue influence over a vulnerable elder before death. These conflicts can escalate into litigation. Understanding how contested estate matters unfold—as detailed in this resource on —helps families anticipate where a missing will leads. And because probate is not one uniform procedure, it pays to understand that there are, in fact, , each suited to a different size and complexity of estate.

The throughline is prevention. A modest planning package—durable power of attorney, health care surrogate, a will, and where appropriate a revocable trust—addresses both the guardianship risk and the probate burden in a single sitting. Our Florida team handles both ends of this spectrum, from protective to the advance planning that keeps families out of court entirely.

When to Call a Florida Probate and Guardianship Attorney

Call when a loved one is showing signs of incapacity and a bank or doctor has refused to deal with you—that is a guardianship question, and the least-restrictive alternatives need evaluation before anyone petitions a court. Call when a family member has died, especially without a will, and assets are sitting in the decedent’s name alone—that is probate, and the right administration path depends on the numbers. And call before either crisis arrives, while documents can still be signed by the person they protect. If you’re in Miami-Dade and unsure which process you’re facing, reach out to our office and we’ll tell you plainly whether you need a guardianship, a probate, or simply a plan.

Frequently Asked Questions

Is guardianship the same as probate in Florida?

No. Guardianship under Chapter 744 protects a living person who has lost the capacity to manage their own affairs, appointing a guardian to make decisions for them. Probate under the Florida Probate Code (Chapters 731-735) only begins after death and settles the deceased person’s estate. One is for the living; the other is for the deceased.

Does a guardianship continue after the ward dies?

No. A Florida guardian’s legal authority ends at the ward’s death. The guardian must file final reports and accountings, and the deceased person’s affairs then transfer to a probate proceeding, where the court appoints a personal representative to settle the estate.

Can I avoid guardianship in Florida?

Often, yes. A valid durable power of attorney and a health care surrogate designation, signed while a person is still competent, usually allow a trusted agent to make financial and medical decisions without a court-supervised guardianship. Florida law specifically favors these least-restrictive alternatives over formal guardianship.

What happens in Florida probate if there is no will?

The estate is intestate, and Florida’s succession statutes (sections 732.102 and 732.103) determine who inherits—typically the surviving spouse and descendants in shares set by law. The court appoints a personal representative based on statutory priority, since no will named one. The state’s default plan replaces the wishes the decedent never recorded.

Are guardianship and probate handled in the same Florida court?

In most counties, yes. Both are heard in the Circuit Court’s Probate and Guardianship Division and governed by the Florida Probate Rules. In Miami-Dade, that is the Probate and Guardianship Division of the Eleventh Judicial Circuit. The shared courtroom is one reason the two processes are often confused.

I’ve handled probate matters in Miami-Dade for years, and the pattern repeats itself. A parent passes away unexpectedly. There’s a house in Little Havana, a bank account, maybe a small business. No will was ever signed. Within weeks, siblings who got along fine at the funeral are no longer speaking, and a clerk’s office filing has turned into a multi-year fight. Understanding why these disputes happen—and how Florida law resolves them—is the first step toward protecting what you’re entitled to.

Why Intestate Estates Breed Heir Disputes

When a person dies with a valid will, the document names a personal representative and tells the court who gets what. When there’s no will, Florida’s intestacy statutes step in. Section 732.102 governs the surviving spouse’s share, and Section 732.103 dictates how the remainder passes to descendants, parents, and more distant relatives. These rules are rigid by design, but they don’t account for the messy realities of modern families.

Consider a few common flashpoints I see in intestate cases:

• Blended families. A surviving spouse and children from a prior marriage rarely have aligned interests. Under Section 732.102, when the decedent has descendants who are not also descendants of the surviving spouse, the spouse takes one-half of the intestate estate and the descendants split the other half. Stepchildren and stepparents frequently clash over this division.
• Unmarried partners. Florida does not recognize common-law marriage entered into after 1968. A long-term partner who was never legally married to the decedent inherits nothing under intestacy, which often triggers bitter litigation against the legal heirs.
• Unequal contributions. One child who lived with and cared for an aging parent may feel entitled to more than a sibling who moved away. Intestacy doesn’t reward caregiving, and resentment follows.
• Disputed paternity or unknown heirs. When a decedent may have had children outside a marriage, determining the class of heirs can require DNA evidence and adversary proceedings.

The absence of a will removes the most powerful tool for preventing these arguments. That’s precisely why estate planning matters—and why our guide to Florida wills exists. But once a person has died intestate, the family is left to litigate.

The Most Common Types of Estate Litigation in Florida

Will Contests

A will contest challenges the validity of a will that has been offered for probate. Even in cases that begin as suspected intestate estates, a will sometimes surfaces—and an heir who would have done better under intestacy may have reason to challenge it. Under Florida Statutes Section 733.107, the burden of establishing a will’s formal validity falls initially on the proponent; once a prima facie case is made, the burden shifts to the contestant to prove a ground for invalidity.

The recognized grounds for setting aside a will include lack of testamentary capacity, undue influence, fraud, duress, mistake, and improper execution under Section 732.502. Undue influence is the ground I litigate most often. Florida courts look at factors first laid out in the well-known case In re Estate of Carpenter, such as whether the alleged influencer was present when the will was executed, helped procure the witnesses, or had a confidential relationship with the decedent. For an in-depth look at how these challenges unfold in a comparable jurisdiction, Morgan Legal’s discussion of is a useful companion read; many of the underlying principles—capacity, undue influence, proper execution—track closely across states.

Disputes Over the Personal Representative

In an intestate estate, there’s no nominated executor, so the court appoints a personal representative according to the priority list in Section 733.301. The surviving spouse has first preference; if there’s no spouse, the person selected by a majority interest of the heirs is next. This is fertile ground for conflict. Two siblings each holding an equal share can deadlock over who should serve.

Once appointed, a personal representative owes fiduciary duties to the estate and its beneficiaries. When those duties are breached—through self-dealing, commingling funds, failing to account, or simply sitting on the estate—heirs can petition to remove and surcharge the fiduciary under Sections 733.504 and 733.609.

Breach of Fiduciary Duty and Accounting Demands

Beneficiaries have a statutory right to information. A personal representative must file an inventory and, ultimately, a final accounting. When heirs suspect assets are being hidden or mismanaged, they can compel a formal accounting and object to it line by line. These objections often expose the real disputes: a vacation taken on estate funds, a car “gifted” to one heir, or property sold below market value to a friend.

Spousal Rights Litigation

Florida gives surviving spouses powerful protections that can override other distributions. The elective share under Section 732.201 entitles a surviving spouse to 30% of the elective estate, regardless of what a will (or intestacy) would otherwise provide. There are also homestead rights under Article X, Section 4 of the Florida Constitution, a family allowance under Section 732.403, and exempt property rights. In Miami’s real estate market, homestead disputes alone can be worth more than the entire rest of the estate.

How Florida Estate Litigation Actually Proceeds

Most people are surprised by how structured contested probate is. It isn’t an informal family meeting; it’s full-blown civil litigation grafted onto the probate process. Here is the typical arc of a disputed intestate estate:

1. Opening the estate. Someone petitions for administration in the circuit court of the county where the decedent lived—Miami-Dade for our local clients. The court determines heirs and appoints a personal representative.
2. Filing an adversary proceeding. Under Florida Probate Rule 5.025, certain matters—will contests, removal of a fiduciary, determination of beneficiaries—are designated “adversary proceedings” and follow the formal Rules of Civil Procedure, including pleadings, service, and discovery.
3. Discovery. Depositions of family members and caregivers, subpoenas for medical and financial records, and sometimes expert testimony from physicians on capacity. This is where cases are won or lost.
4. Mediation. Florida courts routinely order probate disputes to mediation. The vast majority settle here, often because the emotional and financial cost of trial becomes clear.
5. Trial and appeal. If mediation fails, the matter is tried—usually to a judge, not a jury, in the probate division. Appeals go to the relevant District Court of Appeal.

For a broader picture of how administration and litigation interlock, Morgan Legal’s overview of walks through the same machinery from the administration side. The labels differ by state, but the sequence—open, inventory, resolve disputes, distribute, close—is consistent. Our own Florida probate overview maps the local procedure in detail.

Deadlines That Can Make or Break a Claim

Florida probate is unforgiving about time. Miss a deadline and a legitimate claim can vanish. A few that I flag for every client:

• Will contests: Under Section 733.212, an interested person who is served with notice of administration generally has just three months to file an objection to the validity of the will, the venue, or the qualifications of the personal representative. This window is shockingly short.
• Creditor claims: Creditors generally must file within the later of three months after the first publication of notice to creditors or 30 days after being served, under Section 733.702.
• Elective share: A surviving spouse must make the election within six months of being served with the notice of administration, or within two years of death, whichever comes first (Section 732.2135).

Because these clocks start running when documents are served, an heir who ignores a stack of legal papers can forfeit rights without ever appearing in court. If you’ve received any notice from a probate proceeding, the time to speak with counsel is now—not after the deadline passes.

Strategies for Resolving Heir Disputes

Litigation isn’t always the answer, and a good probate lawyer knows when to fight and when to deal. Family settlement agreements, authorized under Section 733.815, let heirs privately rearrange their distributions by mutual consent—a powerful tool when everyone would rather preserve the family home than liquidate it in a partition action. Mediation, as noted, resolves the overwhelming majority of cases. And sometimes the right move is simply a clear accounting that puts suspicions to rest.

That said, when a fiduciary is genuinely looting an estate or a meritless will has been propped up by undue influence, aggressive litigation is the only way to protect an heir’s rights. The judgment about which path to take should come from an attorney who has actually tried these cases in the local courts.

Our firm handles contested estates throughout Miami-Dade and South Florida; you can review our for the full scope of what we do. If you’re facing a dispute right now, reach out for a consultation before a deadline forecloses your options.

Frequently Asked Questions

The questions below address the issues Miami families ask most often when an estate turns contentious. Every situation is fact-specific, so treat these as general guidance rather than legal advice for your case.

Frequently Asked Questions

Can heirs fight over an estate when there is no will in Florida?

Yes. In fact, intestate estates often produce more conflict because there is no will to express the decedent’s wishes. Heirs may dispute who serves as personal representative, how assets are valued and divided under Florida’s intestacy statutes (Sections 732.102 and 732.103), whether someone qualifies as an heir, and whether the personal representative is fulfilling their fiduciary duties. These matters are resolved in the probate division of the circuit court.

How long do I have to contest a will or object in a Florida probate case?

The deadlines are short. Under Florida Statutes Section 733.212, an interested person served with a notice of administration generally has only three months to object to the will’s validity, the venue, or the personal representative’s qualifications. Other clocks—creditor claims, the spousal elective share—run on their own timelines. Because these periods begin when you are served, you should consult a probate attorney as soon as you receive any notice.

What is the most common reason wills are challenged in Florida?

Undue influence is among the most frequently litigated grounds. Florida courts evaluate factors from cases like In re Estate of Carpenter—such as whether the alleged influencer had a confidential relationship with the decedent, was present at the will’s execution, or helped arrange the witnesses. Other grounds include lack of testamentary capacity, fraud, duress, and improper execution under Section 732.502.

Can I remove a personal representative who is mishandling the estate?

Yes. Under Sections 733.504 and 733.609 of the Florida Statutes, interested persons can petition the court to remove a personal representative for breaches of fiduciary duty—such as self-dealing, commingling funds, failing to account, or wasting estate assets—and may seek to surcharge them for resulting losses. Demanding a formal accounting is often the first step in exposing mismanagement.

Do most Florida estate disputes go to trial?

No. Florida courts routinely order probate disputes to mediation, and the large majority settle there or through family settlement agreements authorized by Section 733.815. Trials do happen—usually before a judge in the probate division rather than a jury—when mediation fails or when serious misconduct is at issue. An experienced attorney can advise whether settlement or litigation best protects your interests.