Probate is the court process that moves a Florida estate from the person who died to the people who inherit. Sometimes it’s required, sometimes it isn’t — and the difference is worth thousands of dollars and months of waiting. Here’s how it actually works.
What Is Probate in Florida?
Probate is the court-supervised process of validating a will, paying a deceased person’s debts, and distributing what remains to the rightful heirs or beneficiaries. In Florida, it’s handled through the circuit court in the county where the deceased lived.
Florida has two main tracks:
Summary Administration — a simplified process for smaller or older estates (generally under $75,000 in probate assets, or where the death occurred more than two years ago). Faster and less expensive.
Formal Administration — the full probate process required for larger or more complex estates. Involves appointing a personal representative, notifying creditors, and formal court proceedings.
A third option — Disposition Without Administration — applies in very limited situations where the estate has only exempt property or amounts owed to the person who paid final expenses.
Is Probate Always Required in Florida?
No. Many assets pass to beneficiaries outside of probate entirely and never go through the court process.
Assets that skip probate include:
- Accounts with named beneficiaries (life insurance, IRAs, 401(k)s, POD/TOD bank accounts)
- Jointly owned property with right of survivorship
- Property held in a living trust
- Real estate transferred via a lady bird deed (enhanced life estate deed)
Probate is required when assets are held in the deceased person’s sole name with no transfer mechanism attached — no beneficiary designation, no joint owner, no trust, no deed with survivorship language. If a house was owned solely by the deceased with a standard deed, it goes through probate.
How Long Does Probate Take in Florida?
Summary administration typically takes 1–3 months. Formal administration typically takes 6–12 months — longer if there are disputes, property sales, creditor claims, or tax issues. The clock starts at the date of filing, not the date of death.
| Factor | Summary Administration | Formal Administration |
|---|---|---|
| Typical timeline | 1–3 months | 6–12+ months |
| Estate value | Up to $75,000 (or 2+ yrs since death) | No limit |
| Complexity | Lower — fewer court appearances | Higher — full court process |
| Cost range | Lower (reduced attorney time) | Higher (statutory scale applies) |
| Personal rep required? | Not always required | Required |
| When used | Smaller estates, older deaths | Larger or contested estates |
How Much Does Probate Cost in Florida?
Probate costs in Florida typically include court filing fees (a few hundred dollars), personal representative fees, and attorney fees. The attorney fee is the largest variable — and Florida law sets a statutory presumption of reasonableness based on the estate’s value.
Florida Statutory Attorney Fee Scale (FL §733.6171):
| Estate Value | Statutory Attorney Fee | Note |
|---|---|---|
| Up to $40,000 | $1,500 minimum | Flat minimum |
| $40,000–$70,000 | 2.5% of estate | Sliding scale |
| $70,000–$100,000 | 3% of estate | Sliding scale |
| $100,000–$1M | 3% of estate | Most common range |
| $1M–$3M | 2.5% | Sliding scale |
| $3M–$5M | 2% | Sliding scale |
| $5M–$10M | 1.5% | Sliding scale |
| Over $10M | 1% + court approval | Largest estates |
These fees are a statutory presumption, not a hard cap. Attorneys may petition the court for additional fees for extraordinary services — complex litigation, tax issues, or unusual asset situations. Summary administration generally costs far less because less attorney time is required.
Who Pays Probate Attorney Fees in Florida?
The estate pays — not the beneficiaries personally, and not the personal representative out of their own pocket in the normal case. Attorney fees and other estate expenses are paid from estate assets before distributions are made to heirs.
The order of payment from estate assets is: administration expenses first (including attorney fees), then creditor claims, then taxes, then distributions to beneficiaries. This is why the cost of probate matters — it comes directly off the top of what the family receives.
What Happens If You Don’t File Probate in Florida?
Title freezes. There is no penalty or fine for not filing probate, but the practical consequences are significant:
- Real estate in the deceased’s name cannot be sold or refinanced
- Bank accounts and investment accounts stay locked
- Creditors’ claims continue to accrue
- Beneficiaries cannot receive distributions
The estate stays in legal limbo until someone with standing files a petition. There is no time limit that automatically resolves the situation — if no one files, the assets stay frozen indefinitely. In practice, a frozen estate often creates more cost and complexity the longer it goes unaddressed.
Can You Do Probate in Florida Without an Attorney?
In limited circumstances, yes. Disposition Without Administration (for very small estates with only exempt assets) and some Summary Administration petitions can be handled without an attorney — particularly if all heirs agree and the estate is straightforward.
For Formal Administration, Florida courts effectively require an attorney. Personal representatives in formal proceedings are expected to be represented by counsel in most Florida circuit courts, and self-represented administration of a complex estate carries significant risk of error, delay, and personal liability.
If cost is a concern, discuss it with an attorney before assuming you can proceed alone — the consultation cost is far less than fixing a mistake in formal proceedings.
How to Avoid Probate in Florida
Probate avoidance is one of the primary goals of estate planning — and Florida offers several well-established routes. Each requires action while you’re alive; none can be put in place after death.
1. Lady Bird Deed (Enhanced Life Estate Deed) Transfers real estate directly to a named beneficiary at death, outside probate, while you retain full control and use of the property during your lifetime. One of the most effective and underused tools in Florida estate planning. [Learn more about lady bird deeds in Florida →] (link to existing lady bird deed page)
2. Living Trust (Revocable Trust) Assets transferred into a trust during your lifetime pass to beneficiaries according to the trust’s terms — no court involvement required. Particularly useful for larger estates, multiple properties, or families wanting privacy (probate is public record; trusts are not). [Learn more about living trusts in Florida →] (link to existing trust page)
3. Florida Exempt Assets Certain assets are protected from probate creditors and pass directly under Florida law — including the homestead, certain personal property, and qualified retirement accounts. Understanding what’s already exempt shapes how much additional planning you need. [See which Florida assets are exempt from probate →] (link to existing exempt assets page — pos 7)
4. Beneficiary Designations and Survivorship Titling The simplest route: name a beneficiary on bank accounts, retirement accounts, and life insurance. Title jointly-owned assets with right of survivorship. These changes cost nothing and can move significant assets outside probate immediately. [Estate planning for Florida residents →] (link to existing estate planning page)
Each of these has trade-offs and works best as part of a coordinated plan. A consultation with a Florida estate planning attorney takes the guesswork out of which combination is right for your situation.
Frequently Asked Questions
What is probate in Florida? The court-supervised process of validating a will, paying debts and distributing assets. Florida has two main tracks — summary administration (smaller/older estates) and formal administration — plus assets that skip probate entirely.
How long does probate take in Florida? Summary administration: typically 1–3 months. Formal administration: 6–12 months, longer with disputes or property sales. The clock starts at filing, not at death.
How much does probate cost in Florida? Court fees of a few hundred dollars plus attorney fees — Florida statute presumes reasonable fees on a sliding scale (e.g. 3% of the first $1M). Summary administration costs far less; exact figures in the table above.
Who pays probate attorney fees in Florida? The estate pays, before beneficiaries receive distributions — not the person who hires the attorney personally, in the usual case.
Is probate always required in Florida? No. Assets with beneficiaries, jointly-owned property with survivorship, lady-bird-deed property and trust assets pass outside probate. Probate is required when assets sit in the decedent’s sole name with no transfer mechanism.
What happens if you don’t file probate in Florida? Title freezes — the house can’t be sold, accounts stay locked, and creditors’ claims linger. There’s no fine for not filing, but the estate stays stuck until someone does.
Can you do probate in Florida without an attorney? Disposition without administration and some summary cases, possibly. Formal administration: Florida courts effectively require an attorney for personal representatives in most cases.
How do you avoid probate in Florida? Lady bird deeds, living trusts, beneficiary designations and survivorship titling — set up while you’re alive. Each has trade-offs; that’s exactly what our estate-planning consults cover.