Probate in Florida

Overview

Florida has one of the most active probate systems in the nation due to its large retiree population. The state does not follow the Uniform Probate Code but has developed its own comprehensive Florida Probate Code and Florida Probate Rules. Florida is notable for its strong homestead protections, which can exempt a primary residence from probate creditors and restrict how it can be devised. The state offers both formal administration and a streamlined summary administration for smaller estates.

Key Facts

• Governing Law: Florida Statutes, Chapters 731–735 (Florida Probate Code)
• Court: Circuit Court (Probate Division)
• Small Estate Threshold: $75,000 (summary administration)
• Typical Timeline: 6 to 12 months for formal administration; 1–3 months for summary administration
• Follows UPC: No

What Makes Florida Unique

• Homestead Protection — Florida's constitution provides some of the strongest homestead protections in the nation. A homestead property is generally exempt from forced sale by creditors (except for mortgages and property taxes) and has restrictions on how it can be devised if the owner has a surviving spouse or minor children.
• Summary Administration — For estates valued at $75,000 or less (excluding exempt homestead), Florida offers summary administration, which bypasses the need for a personal representative and can be completed in weeks rather than months. It's also available for any estate if the decedent died more than 2 years ago.
• Attorney Required — Florida is one of the few states where the personal representative is generally required to be represented by an attorney in formal probate proceedings. This requirement can increase costs but also ensures proper legal guidance throughout the process.
• No State Income Tax — Florida has no state income tax, which simplifies estate administration by eliminating the need for a state income tax return for the estate. However, estates may still owe federal income taxes.
• Elective Share with Augmented Estate — Florida's elective share statute provides a surviving spouse with 30% of the augmented estate, which includes certain non-probate assets, providing significant spousal protection against disinheritance.
• Exempt Property and Family Allowance — Florida provides up to $20,000 in exempt property for the surviving spouse and minor children, plus a reasonable family allowance during estate administration, both of which take priority over creditor claims.

Probate Process Steps

1. File petition for administration with the Circuit Court (Probate Division) in the county where the decedent resided
2. Court appoints personal representative and issues letters of administration
3. Personal representative publishes Notice to Creditors in a local newspaper for 2 consecutive weeks
4. Send notice of administration to known or reasonably ascertainable creditors
5. File inventory of estate assets within 60 days of appointment
6. Allow creditor claims period (3 months from first publication of notice or 30 days from direct notice, whichever is later)
7. Object to or pay valid creditor claims
8. Pay debts, taxes, and administration expenses
9. File final accounting and petition for discharge
10. Distribute remaining assets to beneficiaries after court approval

Costs & Fees

Fee Structure: Florida has a statutory fee schedule for attorney fees in probate based on the compensable value of the estate. These are presumed reasonable but can be adjusted. For an estate valued at $1 million, the statutory attorney fee would be $22,500. Personal representative fees are based on reasonable compensation, often following the same schedule as attorney fees.

Typical Attorney Fees: Statutory: 3% of first $1M, 2.5% of next $4M, 2% of next $5M; minimum fee around $1,500

Non-Lawyer Fees: $400 – $2,500 including court filing fees ($400+ per petition), publication costs ($150–$400), certified copies, and recording fees for real property transfers

Florida's requirement that personal representatives be represented by an attorney in formal administration increases costs but provides legal guidance. Summary administration significantly reduces costs for qualifying estates. Bond is generally required unless waived in the will.

Frequently Asked Questions