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Probate in Florida

1. WHAT IS PROBATE?



Florida probate is a probate court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to estate beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

Florida probate law establishes two types of probate administration:

1. Formal Administration, with which most of this probate information deals and

2. Summary Administration, which involves an estate with assets less than $75,000 not counting the homestead or other exempt assets, or where the decedent has been dead for more than 2 years. 

Florida probate law also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration."



2. WHAT ARE FLORIDA PROBATE ASSETS?

Generally, Florida probate assets are those assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:

        • a Florida bank account in the sole name of a decedent is a Florida probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset;

        • a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset, but a policy payable to the decedent's probate estate is a Florida probate asset;

        • Florida real estate titled in the sole name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is exempt Florida homestead) but Florida real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset;

        • Florida property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive but is intended to be illustrative.

3. WHY IS FLORIDA PROBATE NECESSARY?

Florida probate is necessary to wind up the affairs the decedent leaves behind. It ensures that all of the decedent’s creditors are properly paid. Florida probate administration also serves to transfer probate assets from the decedent's individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida probate law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid last will and testament.

4. WHAT IS A LAST WILL AND TESTAMENT?

A last will and testament is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by Florida probate law. A last will usually designates a personal representative, or executor, to administer the probate estate and names beneficiaries to receive Florida probate assets. A last will and testament can also do other things, including establishing a testamentary trust and designating a trustee.

To the extent a last will and testament properly devises probate assets and designates a personal representative, the last will controls over the automatic provisions set forth under Florida probate law. In the absence of a valid last will and testament, or if the last will fails in either respect, Florida probate law designates the probate beneficiaries and designates the way to select the Florida personal representative for the probate estate.

5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO LAST WILL?

Contrary to the belief of some, the decedent’s probate assets are not turned over to the State of Florida unless no intestate heirs can be found. If there is no last will and testament, the assets of the decedent will be distributed to the intestate heirs as follows: 

        • Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the probate estate.

        • Surviving spouse and lineal descendants.

            1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the Florida probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half of the Florida probate estate.

            2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the Florida probate assets and the lineal descendants share the remaining half of the Florida probate estate.

        • No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the Florida probate estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

        • No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the Florida probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.

        • Exceptions to Above. The above provisions are subject to certain exceptions for exempt Florida homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding exempt Florida homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the exempt Florida homestead, with the lineal descendants of the deceased spouse receiving the exempt Florida homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the exempt Florida homestead outright.

6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?

While there may be others, the following is a list of persons or entities often involved in the Florida probate process:

        • Clerk of the Circuit Court  for Escambia County, in Pensacola, or such county as the probate proceeding is pending (See Question 7).

        • Circuit Court for Escambia County, in Pensacola, or such county where the Florida probate proceeding is pending (acting through a Circuit Court Judge, See Question 8).

        • Personal Representative  of the Florida probate estate(See Questions 9 through 11).

        • Florida probate attorney for the Personal Representative (See Question 12).

        • Claimants against the Florida probate estate(See Question 13).

        • Internal Revenue Service (IRS) (See Question 14).

        • Florida Department of Revenue (See Question 15).

        • Surviving Spouse and Children (See Question 16).

        • Other Beneficiaries of the Florida probate estate (See Question 17).

        • Trustee of Revocable Trust (See Question 21).

7. WHERE ARE FLORIDA PROBATE PAPERS FILED?

Florida probate papers are filed with the Clerk of the Circuit Court, for Escambia County, in Pensacola, or in the county where the decedent lived. A probate filing fee must be paid to the probate clerk to commence the Florida probate administration. The probate clerk assigns a file number and maintains a docket sheet which lists all probate papers filed with the probate clerk for that probate administration.

8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION?

A Circuit Court probate judge presides over Florida probate proceedings. The probate judge appoints the personal representative and issues "letters of administration," also referred to simply as "letters." This document shows to the world the authority of the personal representative to act on behalf of the Florida probate estate. The probate judge also holds hearings when necessary and resolves all questions raised during the probate administration of the estate by entering written directions called "orders."

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO IN A FLORIDA PROBATE ESTATE?

The personal representative of the Florida probate estate is the person, bank or trust company appointed by the probate court to be in charge of the administration of the probate estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."

The personal representative is directed by the probate court to administer the probate estate pursuant to Florida probate law. The personal representative is obligated to:

        • Identify, gather, value and safeguard probate assets.

        • Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other papers with the Florida probate court relating to the probate estate. 

        • Serve a "notice of administration" on specific persons, giving information about the probate estate administration and giving notice of requirements to file any objections relating to the probate estate.

        • Conduct a diligent search to locate "known or reasonably ascertainable" creditors of the probate estate, and notify them of the time by which their claims must be filed with the Florida probate court.

        • Object to improper claims and defend suits brought on such claims against the Florida probate estate.

        • Pay valid claims of the probate estate.

        • File tax returns for the probate estate.

        • Pay taxes of the probate estate.

        • Employ necessary probate professionals to assist in the administration of the probate estate.

        • Pay administrative expenses of the probate estate.

        • Distribute statutory amounts or assets to the surviving spouse or family.

        • Distribute assets to beneficiaries of the probate estate.

        • Close the Florida probate administration.

10. WHO CAN BE A PERSONAL REPRESENTATIVE OF A FLORIDA PROBATE ESTATE?

        • The personal representative of the Florida probate estate could be an individual, bank, or trust company, subject to certain restrictions.

        • An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relatives, can serve as personal representative of the Florida probate estate.

        • A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative of the Florida probate estate.

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE OF THE FLORIDA PROBATE ESTATE?

        • If the decedent left a valid last will and testament, the designated personal representative nominated in the last will has preference to serve.

        • If the decedent did not leave a valid last will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs of the probate estate.

12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?

In almost all instances the personal representative must be represented by a Florida probate attorney. Many legal issues arise, even in the simplest estate administration that require the assistance of a Florida probate lawyer.

The Florida probate attorney for the personal representative advises the personal representative on rights and duties under the Florida probate law, and represents the personal representative in probate estate proceedings in the Florida probate court. The Florida probate attorney for the personal representative is not the probate attorney for the beneficiaries of the probate estate.

A provision in a last will and testament mandating that a particular Florida probate lawyer, attorney or law firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative of the Florida probate estate.

13. HOW ARE PROBATE ESTATE CREDITORS HANDLED?

Prior to commencement of Florida probate proceedings, a creditor can file with the Florida probate court a caveat. Upon publication of notice to creditors a creditor or other claimant may file a probate document called a "statement of claim" against the probate estate with the probate Clerk of the Circuit Court in Escambia County, or in the county where the probate estate is being administered. This claim is generally required to be filed with the probate court within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the "non-claim period." The personal representative or any other interested person may file with the Florida probate court an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim.

The personal representative of the probate estate is required to use diligent efforts to give actual notice of the Florida probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims with the Florida probate court. A valid claimant is not viewed as an adversary of the personal representative of the probate estate but rather must be treated fairly as a person interested in the Florida probate estate until the claim has been satisfied or otherwise disposed of.

14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?

For federal income tax purposes, death triggers two things. It ends the decedent's last tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate."

The personal representative may be required to file the following returns, depending on income of the decedent, income of the probate estate and size of the probate estate:

        • Final Form 1040 income tax return, reporting income for the decedent's final tax year.

        • One or more Form 1041 income tax returns for the Florida probate estate, reporting income for the probate estate.

        • Form 709 gift tax return(s), reporting certain gifts made by the decedent prior to death.

        • Form 706 estate tax return, reporting the gross estate and deductions, depending upon the value of the gross probate estate.

The personal representative may be required to file other tax returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including income tax returns that were filed by the decedent or that should have been filed).

The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the probate estate and may be personally liable for those income taxes and federal estate taxes. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to Florida real property, and in some instances in order to close the Florida probate administration with the Florida probate court.

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?

The personal representative of the probate estate is required to send a copy of the Florida probate inventory to the Florida Department of Revenue. If a federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the public records (and file in a formal probate estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estate tax return is required to be filed with the IRS, then the personal representative of the Florida probate estate is required to file a Florida estate tax return, Form F-706, with the Florida Department of Revenue."

Regarding Florida's intangible tax, the Florida Department of Revenue may review the Florida probate inventory to determine whether the probate estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax.

For probate estates required to file a Florida estate tax return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to Florida real property and in order to close a formal probate administration.

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE FLORIDA PROBATE ESTATE?

Florida public policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a pre-marital or post marital agreement to the contrary, a surviving spouse may have exempt Florida homestead rights, Florida spousal elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have exempt Florida homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled by a Florida probate attorney.

17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?

Under Florida probate law, as with most other states, a decedent may entirely disinherit other potential beneficiaries.

18. HOW LONG DOES FLORIDA PROBATE TAKE?

For probate estates not required to file a federal estate tax return, the final accounting and papers to close the Florida probate administration are due within 12 months of issuance of letters of administration. This period can be extended by the Florida probate court, after notice to interested persons.

The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the probate administration are due within 12 months from the date the federal estate tax return is due. This date is usually extended by the Florida probate court because often the IRS' review and acceptance of the estate tax return are not completed within that period.

Probate estates that are not required to file a federal estate tax return and that do not involve probate litigation, will contests, or trust litigation may often close in five or six months.

19. HOW ARE PROBATE FEES DETERMINED IN A FLORIDA PROBATE?

The personal representative, the Florida probate attorney and other probate professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by Florida probate law to reasonable compensation.

The probate fee for the personal representative is usually determined in one of five ways: (1) as set forth in the last will and testament; (2) as set forth in a contract between the personal representative and the decedent; (3) as agreed among the personal representative and the persons who bear the impact of the probate fees; (4) as the amount presumed to be reasonable as calculated under Florida probate law if the amount is not objected to; or (5) as determined by the Florida probate judge, applying Florida probate law.

Likewise, the probate fee for the Florida probate attorney for the personal representative is usually determined (1) as agreed among the Florida probate attorney, the personal representative and the persons who bear the impact of the fee, (2) as the amount presumed to be reasonable calculated under Florida probate law, if the amount is not objected to, or (3) as determined by the Florida probate judge, applying Florida probate law.

20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?

Florida probate law provides for several alternate, abbreviated probate procedures other than Formal Administration.

Summary Administration is generally available if the value of the probate estate subject to probate administration in Florida (less property which is exempt from the claims of creditors) is not more than $75,000 or the decedent has been dead for more than two years.

Under Summary Administration, the persons who receive the Florida probate estate assets remain liable for claims against the decedent for two years after the date of death. This period may be reduced in Summary Administration by publication of notice in a local newspaper

Another alternative to Formal Administration is "Disposition Without Administration." This is available if probate estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.

If the decedent was not a Florida resident at the time of death, an alternate procedure may be used to admit the last will and testament to record in Florida. This procedure is used to establish title to Florida real property. When admitted to record in any Florida county where the probate real estate is located, the "foreign will" serves to pass title to the Florida real estate as if the last will and testament had been admitted to Florida probate. This procedure is available only if either two years have passed from the decedent's death or the domiciliary personal representative has been discharged and there has been no probate estate administration in Florida.

21. WHAT IF THERE IS A REVOCABLE TRUST?

If the decedent created a revocable living trust, in certain circumstances, the trustee may be required to pay expenses of Florida probate administration of the decedent's probate estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" with the Florida probate court in Escambia County, or where the decedent lived, giving information concerning the settlor and trustee.

This material represents general legal advice. Since the Florida probate law is continually changing, some provisions may be out of date. It is always best to consult a Florida probate lawyer or attorney about your legal rights and responsibilities regarding your particular case.

Florida Counties and cities in which the Pensacola Florida probate lawyers, estate planning, elder law, guardianship, Medicaid planning, nursing home abuse, and probate lawyers and attorneys offer Pensacola Florida estate planning, nursing home abuse, elder law, Medicaid planning, guardianship, and Florida probate services:

Alachua probate attorneys	Gainesville, Alachua, Hawthorne, High Springs, Waldo, Newberry, Micanopy
Bay probate lawyers	Panama City, Panama City, Beach, Lynn Haven, Youngstown
Baker probate attorneys	Macclenny, Glen Saint Mary
Bradford probate lawyers	Starke, Brooker, Hampton
Brevard probate attorneys	Cocoa, Cocoa Beach, Merritt Island, Titusville, Melbourne, Palm Bay, Cape Canaveral, Satellite Beach, Rockledge, Barefoot Bay, Indialantic, Malabar
Broward probate lawyers	Ft. Lauderdale, Davie, Sunrise, Weston, Coral Springs, Pompano Beach, Hollywood, Hallendale, Plantation, Dania Beach, Coconut Creek, Deerfield Beach, Lauderhill, Lighthouse Point, Margate, Miramar, Oakland Park, Pembroke Pines, Tamarac, Wilton Manors, Hillsboro Beach, Pembroke Park, Cooper City, Port Everglades, Sea Ranch Lakes, Southwest Ranches
Calhoun probate attorneys	Blountstown
Charlottte probate lawyers	Punta Gorda, Charlotte, Port Charlotte, Palm Island
Citrus probate attorneys	Crystal River, Homosassa Springs, Inverness
Clay probate lawyers	Orange Park, Middleburg, Green Cove Springs, Keystone Heights, Penny Farms
Collier	Naples, Marco Island, Everglades City, Golden Gate, Immokalee, Palm River Estates, Ochopee
Columbia	Lake City, Fort White
DeSoto	Arcadia, Brownville, Fort Ogden, Hull, Pine Level, Platt
Dixie	Cross City, Horseshoe Beach, Old Town
Duval	Jacksonville, Jacksonville Beach, Atlantic Beach, Neptune Beach
Escambia	Pensacola
Flagler	Palm Coast,  Flagler Beach, Bunnell, Beverly Beach, Marineland
Franklin	Apalachicola
Gadsden	Quincy, Chattahoochee
Gilchrest	Trenton
Glades	Moorehaven
Gulf	Port St. Joe, Wewahitchka
Hamilton	Jasper, White Springs
Hardee	Wauchula
Hendry	Clewiston, LaBelle
Hernando	Brooksville, Weeki Wachi
Highlands	Avon Park, Sebring, Lake Placid, Leisure Lakes
Hillsborough	Tampa, Plant City, Temple Terrace, Apollo Beach, Brandon, Lutz, Ruskin, Sun City Center, Riverview, Dover, Thonotosassa, Ybor City
Holmes	Bonifay
Indian River	Vero Beach, Indian River Shores, Fellsmere, Sebastian
Jackson	Marianna
Jefferson	Monticello
Lafayette	Mayo
Lake	Altoona, Clermont, Eustis, Fruitland Park, Lady lake, Leesburg, Minneola, Mount Dora, Tavares, Umatilla
Lee County	Fort Myers, Bonita Springs, Cape Coral, Fort Myers Beach, Sanibel, Boca Grande, Estero, San Carlos Park, Lehigh Acres, Waterway Estates
Leon	Tallahassee
Levy	Bronson, Cedar Key, Chiefland, Williston, Yankeetown
Liberty	Bristol
Madison	Madison
Manatee	Bradenton, Anna Maria Island, Bradenton, Holmes Beach, Longboat Key, Palmetto, Myakka City
Marion	Ocala, Leesburg, Belleview, Citra, Dunnellon, Salt Springs, Weirsdale
Martin	Stuart, Sewall’s Point, Hobe Sound, Jensen Beach, Jupiter Island, Ocean Breeze Park, Palm City
Miami-Dade	Miami, Coral Gables, Coconut Grove, South Miami, Kendall, Homestead, North Miami, North Miami Beach, Miami Beach, Hialeah, Miami Shores, Miami Lakes, Aventura, Bal Harbour, Bay Harbor Islands, Hialeah Gardens, Key Biscayne, Pinecrest, Surfside, Cutler Bay, Doral, Golden Beach, Indian Village, Islandia, Medley, Miami Gardens, North Bay Village, Sunny Isles Beach, Sweetwater, Virginia Gardens, Florida City, Goulds, Biscayne Park
Monroe	Key West, Islamorada, Key Largo, Marathon, Big Pine Key, Key Colony Beach, Sugarloaf Key, Tavernier
Nassau	Fernandina Beach, Amelia Island, Hilliard, Yulee, Callahan
Okaloosa	Fort Walton Beach, Niceville, Cinco Bayou, Destin, Shalimar Valparaiso
Okeechobee	Okeechobee
Orange	Orlando, Lake Buena Vista, Apopka, Edgewood, Maitland, Ocoee, Windemere, Winter Garden, Winter Park, Zellwood
Osceola	Kissimmee, St. Cloud, Celebration
Palm Beach	Palm Beach, West Palm Beach, North Palm Beach, Lake Worth, Boca Raton, Delray Beach, Boynton Beach, Greenacres, Highland Beach, Hypoluxo, Juno Beach, Jupiter, Lake Park, Lantana, Ocean Ridge, Palm Beach Gardens, Royal Palm Beach, Wellington, Pahokee, Tequesta, Riviera Beach, Loxahatchee, Manalapan, Ocean Ridge, Glen Ridge
Pasco	New Port Richey, Bayonet Point, Gulf Harbors, Dade City, Holiday, Hudson, Land O’Lakes, Odessa, St. Leo, Zephyrhills
Pinellas	St. Petersburg, Clearwater, Dunedin, Gulfport, Largo, Oldsmar, Pinellas Park, Safety Harbor, Tarpon Springs, Treasure Island, Belleair, Madeira Beach, North Redington Beach, Seminole, Indian Rocks Beach
Polk	Lakeland, Auburndale. Bartow, Eagle Lake, Fort Meade, Haines City, Lake Alfred, Lake Wales, Winter Haven, Frostproof, Polk City, Highland Park, Indian Lake Estates
Putnam	Palatka, Interlachen
Santa Rosa	Gulf Breeze, Milton
Sarasota	Sarasota, Longboat Key, North Port, Venice
Seminole	Altamonte Springs, Casselberry, Lake Mary, Longwood, Oviedo, Sanford, Winter Springs
St. Johns	St. Augustine, St. Augustine Beach, Ponte Vedra Beach, Nocatee, Crescent City, Melrose, Pomona Park, Welaka
St. Lucie	Fort Pierce, Port St. Lucie
Sumter	Wildwood, Bushnell, The Villages
Suwannee	Live Oak
Taylor	Perry, Steinhatchee
Union	Lake Butler
Volusia	Daytona Beach, Ormond Beach, New Smyrna Beach, Deland, Deltona, Edgewater, Holly Hill, Ponce Inlet, Port Orange
Wakulla
Walton	DeFuniak Springs, Seaside
Washington	Chipley