The following information was provided by The Coleman Law Firm, PLLC and is a revision of information provided as a public service by The Florida Bar.

Probate in Florida

Frequently Asked Questions. 

1. WHAT IS FLORIDA PROBATE?

2. WHAT ARE FLORIDA PROBATE ASSETS?

3. WHY IS FLORIDA PROBATE NECESSARY?

4. WHAT IS A LAST WILL AND TESTAMENT?

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

6. WHO IS INVOLVED IN THE PROBATE PROCESS IN FLORIDA?

7. WHERE ARE PROBATE PAPERS FILED IN FLORIDA?

8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION?

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?

10. WHO CAN BE A PERSONAL REPRESENTATIVE IN FLORIDA?

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?

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

13. HOW ARE ESTATE CREDITORS HANDLED?

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

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?

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

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

18. HOW LONG DOES PROBATE IN FLORIDA TAKE?

19. HOW ARE PROBATE FEES DETERMINED IN FLORIDA PROBATE?

20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?

21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?

1. WHAT IS FLORIDA PROBATE?

Probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries of the Florida probate estate. 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 article deals and

2. Summary Administration

Florida probate law also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration."  (Back to the Top)

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 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 estate is a Florida probate asset;

    • 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 real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset;

    • 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. 
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3. WHY IS FLORIDA PROBATE NECESSARY?

The Florida probate administration 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 assets from the decedent's individual name to the proper beneficiary of the probate estate. 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.  (Back to the Top)

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 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 probate assets and the lineal descendants share the remaining half of the probate assets.

    • No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the 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 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 Florida intestacy 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 Florida exempt 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 Florida exempt 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. 
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6. WHO IS INVOLVED IN THE PROBATE PROCESS IN FLORIDA?

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 Miami-Dade County, or the county in which the decedent resided at the time of death (See Question 7).

• Circuit Court for the 11th judicial circuit of Florida, or the Circuit Court for the county in which the decedent resided at the time of death (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 (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 probate estate (See Question 17).

• Trustee of Revocable Trust (See Question 21). (Back to the Top)

7. WHERE ARE PROBATE PAPERS FILED IN FLORIDA?

Probate papers are filed with the Clerk of the Circuit Court, for Miami-Dade County, at 73 W. Flagler Street, Miami, Florida, or with the probate clerk for 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.  (Back to the Top)

8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION?

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

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?

The personal representative is the person, bank or trust company appointed by the probate court to be in charge of the administration of the Florida 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 creditors or others with claims and other papers relating to the Florida probate estate.

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

• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, 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 Florida probate estate.

• File tax returns for the Florida probate estate.

• Pay taxes owed by the Florida probate estate.

• Employ necessary probate professionals to assist, including a Florida probate attorney or lawyer.

• Pay administrative expenses.

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

• Distribute assets to beneficiaries of the Florida probate estate.

• Close probate administration.  (Back to the Top)

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 probate estate administration.

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. The 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 probate attorney or law firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative.  (Back to the Top)

13. HOW ARE ESTATE CREDITORS HANDLED? 
Prior to commencement of Florida probate proceedings, a creditor can file a caveat with the Florida probate court. 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 Clerk of the Circuit Court in Miami-Dade County or where the probate estate is being administered. This claim is generally required to be filed 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 an objection to the statement of claim, after which the claimant must file in the Florida probate court a separate independent lawsuit to pursue the claim.

The personal representative 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 but rather must be treated fairly as a person interested in the probate estate until the claim has been satisfied or otherwise disposed of. (Back to the Top)

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 estate and size of the 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 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 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 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 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. (Back to the Top)  

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?

The personal representative is required to send a copy of the 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 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 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 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 Florida probate administration.  (Back to the Top) 

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE 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 Florida exempt homestead rights, 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 lawyer or attorney.
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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 of the probate estate.
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18. HOW LONG DOES PROBATE IN FLORIDA TAKE?
For Florida probate estates not required to file a federal estate tax return, the final accounting and papers to close the 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 by the IRS 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 Florida 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 federal estate tax return are not completed within that period.

Estates that are not required to file a federal estate tax return and that do not involve probate or estate litigation may often close in five or six months. (Back to the Top)

19. HOW ARE PROBATE FEES DETERMINED IN 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 fees 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 fees 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 probate 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.  (Back to the Top)

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 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 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 probate procedure is used to establish title to Florida real property. When admitted to record in any Florida county where the real estate is located, the "foreign will" serves to pass title to the Florida real estate as if the will had been admitted to 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.  (Back to the Top) 

21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?

If the decedent created a revocable living trust with the assistance of a Florida estate planning attorney, in certain circumstances, the trustee may be required to pay expenses of 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 probate court in Miami-Dade County, or where the decedent lived, giving information concerning the settlor and trustee.  (Back to the Top)

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

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