Why probate is worth avoiding in Florida
Clerk filing fees are set by statute, Fla. Stat. s. 28.2401, and are uniform statewide: - Formal administration (also ancillary, guardianship, curatorship, conservatorship): $395 - Summary administration, estate valued at $1,000 or more: $340 - Summary administration, estate valued under $1,000: $230 - Disposition of personal property without administration: $230 - Plus a $4 additional service charge on petitions for summary, formal, and ancillary administration Budget separately for: publication of the Notice to Creditors in a local legal newspaper (commonly $100-$400), certified copies and recording the order in the county's official records, and a personal representative's bond if the court requires one. Attorney fees: yes, Florida is a statutory percentage state, with an important qualifier. Fla. Stat. s. 733.6171(3) sets a schedule of fees for ordinary services in a formal administration that is presumed reasonable, computed on the compensable value of the estate (generally the inventory value of probate assets plus income earned during administration): - $1,500 for an estate up to $40,000 - an additional $750 for the portion above $40,000 and not exceeding $70,000 - an additional $750 for the portion above $70,000 and not exceeding $100,000 - 3% of the next $900,000 (the portion above $100,000 up to $1 million) - 2.5% of the portion above $1 million up to $3 million - 2% of the portion above $3 million up to $5 million - 1.5% of the portion above $5 million up to $10 million - 1% of the portion above $10 million Worked example: a $500,000 probate estate yields a presumed reasonable fee of $1,500 + $750 + $750 + 3% of $400,000 = $15,000. Read the presumption correctly, because this is where families get hurt. The schedule is a safe harbor, not a mandatory tariff. The attorney and the personal representative may agree on different compensation, the statute contemplates written disclosure to the client that the statutory schedule is not required, and the court may increase or decrease the fee based on the circumstances. Extraordinary services: will contests, selling real property, tax proceedings, litigation, are billed on top. Many Florida probate attorneys will quote hourly or a flat fee well below the schedule for a routine estate; families should ask, in writing, whether the engagement is statutory-schedule, hourly, or flat, and should not assume the percentage is legally required. Personal representative commission is separately presumed reasonable under Fla. Stat. s. 733.617: 3% of the first $1 million, 2.5% above $1 million to $5 million, 2% above $5 million to $10 million, and 1.5% above $10 million, with extra allowed for extraordinary services. A family member serving as PR routinely waives this. Realistic all-in cost: summary administration handled by counsel commonly runs roughly $1,500-$3,500 plus the $344 in fees. A routine formal administration commonly runs $3,500 upward, and the statutory schedule is the ceiling most estates are measured against. Contested matters are open-ended.
Minimum creditor claim period: In a formal administration the personal representative publishes a Notice to Creditors, and under Fla. Stat. s. 733.702(1) a creditor must file its claim by the later of (a) 3 months after the date of first publication of the notice, or (b) as to any creditor who was required to be served with a copy, 30 days after the date of service on that creditor. Late claims are barred absent fraud, estoppel, or insufficient notice. Separately, under Fla. Stat. s. 733.212 interested persons have 3 months from service of the Notice of Administration to object to the will's validity, the venue, or the qualification of the personal representative, or they are forever barred. Fla. Stat. s. 733.710 imposes an absolute 2-year bar from the date of death on claims against the estate regardless of notice, which is the backstop that makes the two-year summary administration route safe. Realistic total duration: - Disposition without administration: often 2 to 6 weeks; some clerks issue the order within days. - Summary administration: commonly 4 to 12 weeks from filing to the Order of Summary Administration, since there is no personal representative to appoint and no mandatory creditor publication in every case. This is the single biggest reason to check summary eligibility first. - Formal administration, uncontested and simple: 6 to 12 months. The 3-month creditor window is the practical floor, and the estate cannot close until it runs and claims are resolved; add time for the final accounting, tax clearance, and the petition for discharge. - Formal administration with real property to sell, a federal estate tax return, an out-of-state personal representative, or a business interest: 12 to 18 months. - Contested: a will contest, a homestead determination fight, or an elective share proceeding routinely pushes the case to 2 years or more. Ancillary administration for a non-resident decedent's Florida real estate typically tracks the formal timeline unless the simplified ancillary route applies.
Florida protects the family first
Florida provides three distinct family protections, and they sit on top of, not inside, the probate estate: exempt property, Fla. Stat. s. 732.402. The surviving spouse, or if none, the decedent's children, take the following free of all claims except perfected security interests: (a) household furniture, furnishings and appliances in the decedent's usual place of abode, up to a net value of $20,000 as of the date of death; (b) two motor vehicles held in the decedent's name and regularly used by the decedent or immediate family, each not exceeding 15,000 lbs gross vehicle weight; (c) qualified tuition program (529) accounts; and (d) certain death benefits for teachers and school administrators killed in the line of duty. Critical deadline: the right to exempt property is deemed waived unless a petition to determine exempt property is filed within 4 months after the date of service of the notice of administration, or within 40 days after the termination of any will contest proceeding, whichever is later. Family allowance, Fla. Stat. s. 732.403. The court may award the surviving spouse and the decedent's lineal heirs whom the decedent was obligated to support a reasonable allowance in money out of the estate for maintenance during administration, not to exceed $18,000 in total. It is paid in a lump sum or in installments, is chargeable against but not in addition to the recipient's share except as the will provides, and is not charged against any exempt property or the homestead. Homestead. Florida does not use a fixed-dollar "homestead allowance." Instead the protection is constitutional and far larger: under Art. X, s. 4 of the Florida Constitution the homestead passes to the surviving spouse and heirs exempt from the claims of the decedent's creditors, with no dollar cap on value (acreage limits apply, one-half acre within a municipality, 160 acres outside). Under Fla. Stat. s. 732.401, if the decedent is survived by a spouse and one or more descendants, the surviving spouse takes a life estate in the homestead with a vested remainder in the descendants, or the spouse may instead elect an undivided one-half interest as a tenant in common with the descendants taking the other half. That election is time-limited. It must be made within 6 months of the decedent's death (and the deadline is not tollable in the ordinary case), so it is a common malpractice and regret point. There is also the elective share, Fla. Stat. ss. 732.201-732.2155, giving a surviving spouse 30% of the elective estate, which is defined broadly enough to reach many non-probate assets including revocable trusts and POD accounts.
Before death: what works in Florida
These have to be put in place while the owner is alive and competent. In Florida the tools available are:
- Enhanced life estate ('lady bird') deed. Florida's substitute for a TOD deed
- Revocable living trust (Fla. Stat. ch. 736)
- Tenancy by the entirety (married couples, automatic survivorship)
- Joint tenancy with right of survivorship, survivorship language must be express (Fla. Stat. s. 689.15)
- Payable-on-death (POD) bank accounts (Fla. Stat. s. 655.82)
- Transfer-on-death securities registration (Fla. Stat. ch. 711)
- Beneficiary designations: life insurance, IRA, 401(k), annuities
- Life estate deed (conventional)
- Florida community property trust, opt-in, for basis step-up (Fla. Stat. ss. 736.1501-736.1512)
- Summary administration, simplified court procedure (Fla. Stat. s. 735.201)
- Disposition of personal property without administration, small estate (Fla. Stat. s. 735.301)
- Constitutional homestead passing outside creditor claims (Art. X s. 4 Fla. Const.)
- Exempt property and family allowance set-asides (Fla. Stat. ss. 732.402, 732.403)
- Florida land trust (Fla. Stat. s. 689.071)
- Lifetime gifting
Real property: no transfer-on-death deed here
Florida does not have a transfer-on-death deed or beneficiary deed for real estate. Florida has not adopted the Uniform Real Property Transfer on Death Act, and no such instrument appears anywhere in Fla. Stat. ch. 689 (Conveyances of Land), which is where it would live. Bills have been filed in the Legislature over the years but none has been enacted as of July 2026. If you read national guides listing "transfer-on-death deed" as an option, that advice does not apply to Florida real property. Note the near-miss that causes confusion: Florida does allow transfer-on-death registration of securities (brokerage accounts, stocks, bonds) under the Florida Uniform Transfer-on-Death Security Registration Act, Fla. Stat. ch. 711, and payable-on-death bank accounts under Fla. Stat. s. 655.82, but neither reaches real estate. The nearest Florida alternatives, best first: 1. Enhanced life estate deed, universally called a "lady bird deed" in Florida. This is the workhorse Florida substitute for a TOD deed. The owner keeps a life estate plus the retained power to sell, mortgage, or revoke without the remainder beneficiary's consent; on death the property vests in the named remainderman automatically, outside probate. Florida is one of only a handful of states where lady bird deeds are recognized and routinely accepted by title insurers. Important accuracy point: this is a creature of Florida common law and title practice, not a statute. There is no Florida statute you can cite for it, so it must be drafted correctly. Practical advantages over an outright gift: no documentary stamp tax on an unencumbered transfer because no present interest passes, the homestead tax exemption and Save Our Homes cap are preserved, the beneficiary gets a full stepped-up basis at death, and it is not a transfer for Medicaid look-back purposes. 2. Revocable living trust. Fully effective in Florida, governed by the Florida Trust Code, Fla. Stat. ch. 736. Deed the house into the trust during life. Caution: see the homestead trap in localQuirks, a trust does not let you get around the constitutional restriction on devising homestead. 3. Conventional life estate deed. Works, but the remainder interest vests immediately, so you cannot sell or mortgage without the remainderman signing, it is a completed gift for Medicaid look-back, and it can jeopardize the homestead exemption. Almost always inferior to a lady bird deed in Florida. 4. Tenancy by the entirety for married couples, automatic survivorship plus creditor protection, and it is presumed when spouses take title together. 5. Joint tenancy with right of survivorship, available, but read the s. 689.15 warning in localQuirks; the survivorship language must be express.
So what do you do about the house?
Without a transfer-on-death deed the usual answers in Florida are a revocable living trust, or joint ownership with right of survivorship. A trust costs more up front and has to be properly funded; joint ownership is free but exposes the property to the co-owner’s creditors and divorce. Neither is obviously right, it is worth an hour with an estate attorney.
Accounts: the fastest win
Payable-on-death and transfer-on-death designations are available on bank and brokerage accounts in every state including Florida. They cost nothing, take ten minutes at the branch, do not affect your control of the money while you are alive, and remove the account from probate entirely. If someone reading this only does one thing, this is the one.
The same principle already governs retirement accounts and life insurance, which is why the beneficiary form matters more than the will, a beneficiary designation overrides the will, every time. Review them after every marriage, divorce, birth and death.
After death: the small estate affidavit
None of the above can be done retroactively, but Florida still has a route. Under Disposition of Personal Property Without Administration. Fla. Stat. § 735.301 (reimbursement-limited, any time after death) and § 735.304 (intestate small estates, up to $20,000, decedent dead > 1 year), both requiring an informal application/affidavit filed with the probate court; plus a true no-court bank affidavit under § 735.303 (Payment to Successor Without Court Proceedings, up to $2,000, 6 months after death). Larger estates use Summary Administration, § 735.201 (up to $150,000 as of July 1, 2026)., the next of kin can collect the decedent’s property without opening probate when:
- the estate is worth $20,000 or less, and
- at least 365 days have passed since the death, and
- no probate case has already been opened.
Florida has three separate, non-interchangeable ceilings and no single "small estate affidavit" limit. (1) § 735.304, the closest analog to a small estate affidavit: nonexempt personal property not exceeding $20,000 (raised from $10,000 effective 7/1/2026 by Ch. 2026-57), plus (not counted against the cap) property exempt under § 732.402 and under the Florida Constitution, plus the amount of preferred funeral expenses and reasonable/necessary medical and hospital expenses of the last 60 days of the last illness; intestate only; decedent dead more than 1 year; no administration pending. (2) § 735.301, no fixed dollar cap: nonexempt personal property must not exceed preferred funeral expenses (capped at $6,000 aggregate by § 733.707(1)(b)) plus last-60-days medical/hospital expenses; in practice this is a reimbursement mechanism for whoever paid those bills, and clerks commonly describe it as a sub-$6,000-plus-medical-bills procedure. (3) § 735.303, bank/credit-union affidavit paid with no court involvement at all: aggregate of $2,000 across all "qualified accounts" (sole-name depository accounts and CDs with no POD/survivor designation) at all financial institutions known to the affiant (raised from $1,000 effective 7/1/2026). Above these, the fallback is Summary Administration, § 735.201: entire estate subject to administration in Florida, less exempt property, not exceeding $150,000 (raised from $75,000 effective 7/1/2026), or decedent dead more than 2 years (no dollar limit in that alternative).
Full detail, including who may sign and where to take it, is on our Florida small estate affidavit page.
The middle option most families miss
Yes, and in Florida this middle option is unusually generous and badly underused. Florida runs three tiers: tier 1 - disposition of personal property without administration, Fla. Stat. s. 735.301. Florida's smallest-estate procedure. No dollar cap as such; it applies where the estate consists only of property exempt from creditors' claims plus non-exempt personal property worth no more than the sum of preferred funeral expenses (up to $6,000) and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness. No real property may pass this way. Filed on a simple form with the clerk; many clerks let a family member do it without a lawyer. Fee $230. Tier 2 - summary administration, Fla. Stat. ss. 735.201-735.206. This is the middle option. It is court-supervised and produces a recordable Order of Summary Administration, but there is no personal representative appointed, no inventory in the usual sense, and no long administration. It can pass real property, including the homestead, which is what makes it so valuable. Two independent qualifying routes under s. 735.201: (a) value route: the value of the entire estate subject to administration in Florida, less the value of property exempt from the claims of creditors, does not exceed $150,000; or (b) two-year route: the decedent has been dead for more than 2 years, with no dollar limit at all. Two consequences families constantly miss. First, the $150,000 is measured after subtracting creditor-exempt property, and Florida's constitutional homestead is exempt from creditors' claims. So a $700,000 protected homestead plus $60,000 of bank accounts can still qualify for summary administration. Second, the two-year route means an estate of any size, the classic situation where a parent died years ago and nobody ever cleared title to the house, qualifies for the simplified procedure outright. Under s. 735.2055 a petition may also be filed at any stage of a formal administration if the estate would then qualify, so a formal case can sometimes be converted down. Section 735.206 requires the petitioner to make a diligent search and reasonable inquiry for known or reasonably ascertainable creditors and to provide for them. Also note the decedent must not have left a will directing formal administration. Fee $340 (or $230 if the estate is valued under $1,000), plus a $4 service charge. Tier 3 - formal administration, Fla. Stat. ch. 733. Everything else. Fee $395 plus $4. Ancillary administration exists for out-of-state decedents owning Florida real property, and there is a simplified ancillary path where the two-year or small-value tests are met.
If the estate is over the affidavit limit, ask the probate court clerk about this before assuming you face the full process. Clerks cannot give legal advice, but they can tell you which procedures exist and hand you the forms.
Common mistakes in Florida
- Assuming a will avoids probate.It doesn’t. It directs probate. This is the most common misconception in the whole subject.
- Adding an adult child to the deed.It does avoid probate, and it also exposes the property to that child’s creditors and divorce, may trigger gift-tax reporting, and can cost them the step-up in basis.
- Paying for a trust and never funding it. A trust only governs assets actually retitled into it.
- Stale beneficiary forms. The form beats the will.
- Overestimating the estate after a death. Families routinely count the jointly-held house, the 401(k) with a named beneficiary and the POD savings account, conclude they are over the limit, and pay for probate they never needed.
- Filing probate before checking. In most states, once a personal representative is appointed the affidavit route closes permanently. The reverse is not true, so check first.
Worth knowing in Florida
1. The homestead devise restriction, the single biggest Florida trap, and it silently voids estate plans. Under Fla. Stat. s. 732.4015 the homestead shall not be devised if the owner is survived by a spouse or by a minor child; the only exception is a devise of the entire homestead to the spouse when there is no minor child. This is constitutional, so no will, no trust, no lady bird deed, and no TOD-style workaround can override it. If a Florida parent with a surviving spouse or a minor child signs a lady bird deed leaving the house to the adult children, the deed fails as to the homestead and the property instead descends by the statutory default, spousal life estate with remainder to descendants (or the 50% tenancy-in-common election). Section 732.4015 expressly defines "owner" to include the grantor of a trust holding what would be homestead if titled individually, so putting the house in a revocable trust does not escape the rule. A spouse can waive homestead rights by a valid prenuptial, postnuptial, or a properly executed waiver deed. Note also that a minor child blocks the devise even if the spouse consents. Florida is unusual in this. Anyone deeding a Florida homestead needs a Florida lawyer to confirm the devise is permitted. 2. Florida abolished the presumption of survivorship in joint deeds. Fla. Stat. s. 689.15 provides that the doctrine of the right of survivorship in real and personal property held by joint tenants "shall not prevail in this state", a conveyance to two or more people creates a tenancy in common unless the instrument expressly provides for the right of survivorship. The only exception is tenancy by the entirety between spouses, which does carry automatic survivorship. Families add an adult child to the deed believing the house will pass automatically, the deed never says "with right of survivorship," and the parent's half goes straight through probate. If you are relying on a joint deed to avoid probate in Florida, pull the deed and read it for the survivorship words. Section 689.15 also provides that spouses holding by the entirety become tenants in common on dissolution of marriage, so a divorce quietly destroys the survivorship without anyone re-recording anything. 3. Homestead is excluded when testing the $150,000 summary administration cap, because the cap is measured after subtracting property exempt from creditors' claims. Far more Florida estates qualify for summary administration than families assume. Always test summary eligibility before agreeing to a formal administration. 4. If the death was more than 2 years ago, summary administration is available with no dollar limit under s. 735.201(1)(b), because s. 733.710 has already barred creditors. The classic Florida scenario: a parent died six years ago, the house was never probated, nobody can sell it, is usually fixable with a summary administration, not a full formal administration. 5. You generally cannot do Florida probate without a lawyer. Florida Probate Rule 5.030 requires a personal representative to be represented by a Florida-admitted attorney unless the personal representative remains the sole interested person (or is themselves a Florida attorney). Disposition without administration is the practical DIY exception. Budget for counsel from the start. 6. Out-of-state personal representatives are restricted. Under Fla. Stat. s. 733.304 a non-resident cannot serve as personal representative unless they are a close relative of the decedent: spouse, sibling, parent, child, or another lineal or collateral relative within the statutory list, or the spouse of such a person. Naming an out-of-state friend, a non-relative business partner, or an out-of-state accountant as executor in a Florida will produces a person who is legally disqualified to serve. Check this before executing the will. 7. Adding a child to the deed during life is usually the wrong move in Florida. It is a completed gift that starts the Medicaid five-year look-back, forfeits the child's stepped-up basis on the gifted share, exposes the home to the child's creditors and divorce, can trigger documentary stamp tax under Fla. Stat. s. 201.02 where there is a mortgage, and can cost the homestead tax exemption and Save Our Homes assessment cap. A lady bird deed accomplishes the same probate avoidance without any of these consequences, which is precisely why it is standard practice in Florida. 8. The elective share reaches non-probate assets. Avoiding probate does not avoid the surviving spouse's 30% elective share, the elective estate under Fla. Stat. ss. 732.2035 and following is defined broadly to include revocable trust property, POD and TOD accounts, jointly held property, and certain life insurance cash values. A plan built to route everything around a spouse via beneficiary designations will not work in Florida without a valid written waiver. 9. TOD securities yes, TOD real estate no. Because Fla. Stat. ch. 711 does authorize transfer-on-death registration for brokerage and securities accounts, Floridians frequently and reasonably assume the same is available for their house. It is not. Confirming this in plain language prevents a family from spending months looking for a form that does not exist. 10. Tenancy by the entirety must be preserved. It is presumed for spouses on real property, but for bank and brokerage accounts the institution's signature card often defaults to joint tenancy or JTWROS, quietly losing the entireties creditor protection. Married Floridians should confirm account titling in writing.
Sources
Common questions
Has someone already died in Florida?
Then the useful question is whether the estate qualifies for the affidavit route. Two minutes, free.
Check if you qualify