How Florida Probate Works: A Step-by-Step Overview

Florida probate is the court-supervised process of identifying a deceased person’s assets, paying valid debts and taxes, and distributing what remains to the rightful heirs or beneficiaries. When there is a will, the estate is administered according to its terms; when there is no will, Florida’s intestacy statutes decide who inherits. Most Florida estates move through one of two paths — formal administration or summary administration — under Chapters 731 through 735 of the Florida Statutes.

I’ve guided families in Miami-Dade through this process for years, and the single most common misconception I hear is that probate is a punishment or a trap. It isn’t. It’s a procedure — sometimes tedious, occasionally contentious, but ultimately a structured way to transfer ownership of property after death. What follows is a plain-language walk through how Florida probate actually works, with particular attention to estates where the decedent died intestate, meaning without a valid will.

What probate is — and when Florida requires it

Probate becomes necessary when a person dies owning assets in their sole name that don’t pass automatically to someone else. A bank account titled only in the decedent’s name, a home held individually, a brokerage account with no beneficiary designation — these are probate assets. They’re frozen, in a practical sense, until a court appoints someone with legal authority to deal with them.

Plenty of property skips probate entirely. Assets that typically pass outside the probate estate include:

• Property held as joint tenants with right of survivorship or as tenancy by the entirety between spouses
• Life insurance, IRAs, and retirement accounts with a named, living beneficiary
• Bank or investment accounts with a valid pay-on-death (POD) or transfer-on-death (TOD) designation
• Assets titled in the name of a living trust
• Florida homestead property, which often passes by operation of law to a surviving spouse and descendants

If everything a person owned fits one of those categories, the family may avoid probate altogether. When it doesn’t — and in many estates it doesn’t — the court process begins.

Testate versus intestate: why the will (or its absence) shapes everything

Florida law draws a sharp line between estates with a will (testate) and estates without one (intestate). A valid will names a personal representative — Florida’s term for what other states call an executor — and dictates who receives what. When there’s no will, the court still appoints a personal representative, but the people who inherit are determined entirely by statute, not by anyone’s wishes.

Florida’s intestacy scheme lives in Sections 732.101 through 732.111 of the Florida Statutes. The distribution depends on who survives the decedent:

• Surviving spouse, no descendants: the spouse takes the entire intestate estate.
• Surviving spouse and descendants, all of whom are also the spouse’s descendants: the spouse still takes the entire estate.
• Surviving spouse plus descendants who are not the spouse’s (or the spouse has other children): the estate splits one-half to the spouse and one-half to the descendants, under § 732.102.
• No surviving spouse: the estate passes to descendants, then to parents, then to siblings, and outward along the family tree per § 732.103.

This is exactly why dying without a will so often surprises families. A blended household may assume a surviving spouse inherits everything, only to learn the children from a prior marriage are entitled to half. The statute is rigid; it does not bend to what anyone believes the decedent “would have wanted.” If you’re navigating an intestate estate and the math feels unfair, that frustration is real — but the remedy is procedural, not emotional, and it’s worth getting counsel early. Florida treats will disputes and the rules governing inheritance with the same seriousness that experienced firms apply to in other jurisdictions.

The step-by-step Florida probate process

Most contested or larger estates proceed through formal administration, governed by Chapter 733. Here’s how the sequence generally unfolds.

Step 1 — Deposit the will and open the estate

If a will exists, the custodian must deposit it with the clerk of the circuit court in the county where the decedent lived, within 10 days of learning of the death (§ 732.901). The case is filed in that county’s probate division — for most of my clients, that’s the Miami-Dade County Circuit Court. A petition for administration starts the case. In an intestate estate, there’s no will to deposit, but the petition still identifies the heirs and asks the court to appoint a personal representative.

Step 2 — Appoint the personal representative

The court issues Letters of Administration, the document that gives the personal representative authority to act for the estate. Florida is strict about who can serve: a personal representative must generally be a Florida resident, or — if a nonresident — a close relative such as a spouse, child, parent, or sibling (§§ 733.302–733.304). When there’s no will naming someone, § 733.301 sets the order of preference, starting with the surviving spouse, then the person selected by a majority of the heirs.

Step 3 — Notify creditors and beneficiaries

The personal representative must publish a Notice to Creditors and serve known creditors directly. This triggers the claims period: creditors generally have three months from first publication (or 30 days from service, if later) to file claims against the estate (§ 733.702). Beneficiaries and heirs receive a Notice of Administration, which starts their own clock to object to the will’s validity, the appointment, or the court’s jurisdiction. Florida’s nonclaim statute, § 733.710, ultimately bars most claims two years after death — a hard outer limit.

Step 4 — Inventory and value the assets

Within 60 days of receiving Letters, the personal representative files an inventory listing the probate assets and their date-of-death values. This is where appraisals, account statements, and title searches come in. For an intestate estate, careful asset identification matters even more, because there’s no will or memorandum hinting at what the decedent owned.

Step 5 — Pay debts, taxes, and expenses

Valid creditor claims are paid in the statutory order of priority set by § 733.707 — administrative costs and funeral expenses first, then taxes, then general claims. Florida has no state estate tax, and the federal estate tax reaches only very large estates, so most of my clients deal with final income taxes and ordinary debts rather than a transfer-tax bill. If estate assets are insufficient to pay everyone, the priority statute decides who gets paid and who doesn’t.

Step 6 — Distribute and close

Once debts and the creditor period are resolved, the personal representative distributes the remaining assets — by the will’s terms, or by the intestacy statute when there’s no will — and files a final accounting and petition for discharge. The court then closes the estate and releases the personal representative from further duty.

Summary administration: the shorter path

Not every estate needs full formal administration. Under Chapter 735, summary administration is available when either (a) the value of the probate estate, minus exempt property, is $75,000 or less, or (b) the decedent has been dead for more than two years (§ 735.201). There’s no personal representative appointed; instead, the interested parties petition the court directly for an order distributing the assets. It’s faster and cheaper, and it works for many modest intestate estates. There’s also disposition without administration for very small estates consisting only of exempt property and limited assets used to reimburse final expenses.

Choosing the right track is a judgment call. I’ve seen families file summary administration to save money, only to discover an overlooked creditor or a title problem that formal administration would have cleaned up. When in doubt, it’s worth a conversation before you file. The same care that goes into a routine applies whether the estate is large or small.

How long does Florida probate take, and what does it cost?

A clean summary administration can wrap up in a few weeks to a couple of months. Formal administration typically runs six months to a year, driven largely by the three-month creditor claims period and the time needed to marshal assets. Contested estates — will challenges, disputes among heirs, creditor litigation — can stretch considerably longer.

Costs include the court filing fee, publication costs, and attorney’s fees. Florida § 733.6171 provides a presumptively reasonable fee schedule for attorneys based on the estate’s value, though many lawyers, including my office, will discuss flat or hourly arrangements for simpler matters. Personal representatives are also entitled to a statutory commission under § 733.617.

Special Florida wrinkles: homestead and the elective share

Two Florida-specific doctrines trip up families constantly.

Homestead. Florida’s constitutional homestead protection restricts how a primary residence can pass at death. If the decedent leaves a spouse and minor children, the homestead generally cannot be devised freely and passes by a specific formula. Even in intestacy, the surviving spouse typically receives a life estate or a one-half interest, with the remainder to descendants. Homestead is also protected from most creditors, which is why it’s often the most valuable asset that doesn’t get consumed by debts.

Elective share. A surviving spouse can’t be disinherited in Florida. Under §§ 732.201–732.2155, the spouse may elect to take 30% of the elective estate, a figure calculated across a broad base of assets, not just probate property. This matters most in testate estates but shapes negotiations in many cases.

If you’re handling a Florida estate from outside the state, or you’re a Florida family facing a multi-state estate, coordinating counsel matters. Our regularly works alongside out-of-state offices to keep a single estate moving on parallel tracks.

Practical advice for personal representatives and heirs

A few things I tell nearly every client at the first meeting:

• Don’t distribute anything early. Pay creditors and resolve the claims period first. A personal representative who hands out money prematurely can be personally liable.
• Keep meticulous records. Every receipt, statement, and disbursement may end up in the final accounting.
• Identify homestead and exempt property right away. It changes the math on what’s actually distributable and what’s protected from creditors.
• If there’s no will, get the heir chart right. Intestacy follows the family tree precisely; a missed heir can unravel a distribution.

If you’re just starting out, learning the difference between probate and wills and estate planning can clarify why this estate is in court in the first place — and how the next generation might avoid it. And when you’re ready to open a case or simply want to understand your options, reach out to our Miami probate team to talk through the specifics of your situation.

The bottom line

Florida probate is a defined sequence: open the estate, appoint a personal representative, notify creditors, inventory assets, pay debts, and distribute what’s left. A will streamlines the distribution; its absence hands that decision to the intestacy statutes. Whether your matter qualifies for quick summary administration or requires full formal administration, understanding the steps — and where the Florida-specific rules on homestead and the elective share come in — puts you in control rather than at the mercy of the process. For estates with disputes, missing heirs, or significant assets, getting experienced probate counsel involved early is almost always the cheaper path in the end.

Frequently Asked Questions

Is probate required in Florida if there is no will?

Often yes. Dying without a will (intestate) does not avoid probate; it simply means Florida’s intestacy statutes, Sections 732.101 through 732.111, decide who inherits instead of the decedent. Probate is still needed to appoint a personal representative and transfer any assets titled solely in the decedent’s name. Probate may be avoided only if all assets pass outside probate, such as jointly held property, accounts with beneficiary designations, or trust assets.

How long does probate take in Florida?

A summary administration can finish in a few weeks to a couple of months. Formal administration usually takes about six months to a year, largely because of the three-month creditor claims period and the time required to inventory and value assets. Contested estates involving will challenges or disputes among heirs can take significantly longer.

What is the difference between formal and summary administration?

Formal administration (Chapter 733) is the full court-supervised process with an appointed personal representative, used for larger or contested estates. Summary administration (Chapter 735) is a faster, simpler procedure available when the probate estate is worth $75,000 or less, or when the decedent has been deceased for more than two years. Summary administration does not require appointing a personal representative.

Who inherits when someone dies without a will in Florida?

Florida’s intestacy statute controls. A surviving spouse takes the entire estate when there are no descendants, or when all descendants are shared with the spouse. If there are descendants from another relationship, the estate splits one-half to the spouse and one-half to the descendants under Section 732.102. With no spouse, the estate passes to descendants, then parents, then siblings, and outward along the family tree.

Can a surviving spouse be left out of a Florida estate?

Generally no. Florida’s elective share law, Sections 732.201 through 732.2155, lets a surviving spouse claim 30% of the elective estate even if a will tries to disinherit them. Homestead protections also restrict how a primary residence can be left away from a spouse and minor children.