Florida Residency
Was the decedent a Florida resident, or did the decedent own Florida property while living elsewhere?
FLORIDA PROBATE, WILLS & ESTATE PLANNING
Guidance for Florida Families, Estates and Inherited Property
Understand who has authority to act, how estate property should be handled and what steps may be required before assets can be transferred or sold.
Probate, wills, trusts and estate-planning legal services are provided separately by Barry Miller Law. When an estate includes Florida real estate, The Closing Agent may separately provide title insurance and settlement services for an approved sale or transfer.
AFTER A FAMILY MEMBER DIES
Probate Is More Than Filing a Will
The death of a family member often creates legal, financial and practical responsibilities at an already difficult time.
Families may need to locate estate-planning documents, determine who has authority to act, protect estate assets, address creditors, maintain real estate and distribute property to the appropriate beneficiaries.
The correct process depends on how the assets were owned, whether a valid will or trust exists, the family circumstances and the nature of the estate.
START WITH THE FACTS
Questions That Help Determine the Next Step
The answers help identify whether probate is required and which legal process may be appropriate.
Estate Documents
Is there an original will, codicil, trust or other estate-planning document?
Asset Ownership
Were accounts, real estate and business interests owned individually or jointly?
Beneficiary Designations
Were retirement accounts, insurance or financial accounts payable to named beneficiaries?
Real Estate
Did the decedent own a home, rental property, commercial property or vacant land?
Immediate Expenses
Are mortgage, insurance, association, utility or property-tax payments currently due?
HOW ASSETS TRANSFER
Probate and Non-Probate Assets
Not every asset automatically becomes part of a probate estate.
The actual ownership records, beneficiary designations and governing documents should be reviewed before anyone assumes that an asset will or will not require probate.
MAY REQUIRE PROBATE
Individually Owned Assets
- Bank or investment accounts without a beneficiary
- Real estate titled solely in the decedent’s name
- Property without a survivorship arrangement
- Personally owned business interests
- Refunds or claims payable to the estate
- Personal property without another transfer mechanism
MAY TRANSFER OUTSIDE PROBATE
Assets With Another Transfer Method
- Joint property with rights of survivorship
- Accounts with valid payable-on-death designations
- Retirement accounts with named beneficiaries
- Life insurance payable to a beneficiary
- Property held in a properly funded trust
- Other valid beneficiary or survivorship arrangements
FLORIDA PROBATE PROCEDURES
Types of Estate Administration
The appropriate procedure depends on the estate value, assets, creditors, timing and other legal requirements.
Formal Administration
The full probate process, generally involving appointment of a personal representative and ongoing court administration.
- Estate assets require active management
- Real estate must be maintained or sold
- Creditor claims require formal handling
- Beneficiary disputes or litigation exist
- The estate does not qualify for another procedure
Summary Administration
A simplified procedure that may be available when the statutory requirements are satisfied.
- Qualifying estate value does not exceed the statutory limit
- The decedent has been deceased for more than two years
- Interested persons can participate as required
- Creditor, title and property concerns remain manageable
Disposition Without Administration
A limited procedure that may apply to certain very small estates involving specified expenses and exempt personal property.
- Available only in narrow circumstances
- Generally not used for routine real estate administration
- Eligibility should be reviewed by an attorney
FIDUCIARY RESPONSIBILITY
What Does a Personal Representative Do?
In a formal probate administration, the court may appoint a personal representative to act for the estate.
The personal representative has legal and fiduciary responsibilities to the estate and interested persons. The role is more than simply dividing property among family members.
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Locate and safeguard estate assets
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Work with legal and tax professionals
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Notify and address creditors
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Maintain insurance and property expenses
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Collect income owed to the estate
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Manage or sell estate property
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Maintain complete financial records
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Distribute assets under legal authority
WHEN THE ESTATE INCLUDES REAL ESTATE
Property Often Becomes the Most Time-Sensitive Estate Asset
Real estate may require immediate attention even before the family has decided whether to retain, transfer or sell it.
Insurance, mortgage payments, taxes, utilities, association charges, occupancy and maintenance should be addressed while legal authority is being established.
Get Help With Estate PropertyOwnership
Confirm how the property is titled and whether survivorship, homestead or trust issues apply.
Authority
Determine who can sign a listing agreement, contract, deed or other transaction document.
Occupancy
Address whether a spouse, family member, tenant or other person is living in the property.
Expenses
Maintain insurance, taxes, mortgage, association and necessary property services.
Liens and Payoffs
Identify mortgages, judgments, association balances and other title requirements.
Sale or Transfer
Confirm the probate, homestead and court requirements before completing a transaction.
ESTATE AND PROBATE PROPERTY SALES
Coordinate the Legal and Title Work Early
Early coordination among the attorney, real estate professional and title company can help reduce avoidable closing delays.
Confirm the Probate Process
Determine which administration is required and who must participate.
Establish Authority
Confirm who may list, contract for and sell the property.
Order Early Title Work
Identify ownership, mortgages, liens and estate-related title requirements.
Obtain Required Approval
Secure any necessary court order, beneficiary participation or legal documentation.
Prepare Closing Documents
Coordinate deeds, affidavits, probate records and settlement materials.
Complete the Closing
Sign through the legally authorized parties and handle proceeds according to the estate requirements.
SEPARATE PROFESSIONAL ROLES
Probate Counsel and the Title Company Serve Different Functions
Legal representation and title or settlement services are provided through separate organizations and separate engagements.
LEGAL SERVICES
Barry Miller Law
- Formal and summary administration
- Advice to personal representatives
- Creditor and beneficiary matters
- Homestead analysis
- Will and trust interpretation
- Authority to sell estate property
- Deed and transfer advice
- Estate planning and probate disputes
TITLE & SETTLEMENT SERVICES
The Closing Agent
- Preliminary title research
- Review of ownership and probate records
- Identification of title requirements
- Payoff and association coordination
- Settlement-statement preparation
- Closing and disbursement
- Recording
- Title-insurance issuance
ESTATE PLANNING BEFORE A CRISIS
A Will Is Only One Part of the Plan
Estate planning helps individuals decide who should act, how assets should be managed and how property should be transferred if they become incapacitated or die.
The appropriate plan depends on family circumstances, asset ownership, real estate, business interests and personal goals.
Last Will and Testament
Identifies beneficiaries, nominates a personal representative and provides estate instructions.
Revocable Living Trust
May provide management of properly transferred assets during incapacity and after death.
Durable Power of Attorney
Authorizes another person to handle specified financial and legal matters during the principal’s lifetime.
Health Care Surrogate
Identifies the person authorized to make health-care decisions when needed.
Living Will
Provides instructions concerning certain end-of-life medical decisions.
Preneed Guardian Declaration
Identifies the person preferred to serve if guardianship later becomes necessary.
Beneficiary Review
Coordinates account designations with the broader estate plan.
Ownership Review
Evaluates how real estate, accounts and business interests are titled.
PLANNING FOR FLORIDA REAL ESTATE
Property Ownership Should Be Coordinated With the Estate Plan
An estate plan should address what will happen to real estate, who can manage it and whether it should be retained, transferred or sold.
A deed should not be changed solely to avoid probate without first considering legal, tax, creditor, homestead and ownership consequences.
Florida Homestead
Joint Ownership
Life Estates
Revocable Trusts
Rental Property
Investment Property
Out-of-State Property
Business Entity Ownership
Family Occupancy
Mortgage Obligations
Property Maintenance
Sale or Retention Planning
KEEP THE PLAN CURRENT
When Should Estate-Planning Documents Be Reviewed?
Family Changes
Marriage, divorce, birth, adoption, death or incapacity may require revisions.
Property Changes
Review the plan after buying, selling or retitling significant real estate.
Relocation
Documents prepared in another state should be reviewed after moving to Florida.
Business Changes
Formation, acquisition or sale of a business may affect the estate plan.
Financial Changes
Retirement, inheritance or acquisition of substantial assets may change planning needs.
Changes in Goals
Fiduciary choices, beneficiaries and family relationships may evolve over time.
COMMON PROBATE AND ESTATE MISTAKES
Assumptions Can Create Delays and Personal Risk
Assuming a will avoids probate
Acting before legal authority is established
Distributing assets before creditor issues are resolved
Allowing property insurance to lapse
Failing to maintain mortgage or tax payments
Listing property before confirming signing authority
Ignoring the need for the original will
Assuming joint ownership always includes survivorship
Changing deeds without legal and tax advice
Ignoring homestead rights
Treating estate funds as personal funds
Failing to maintain complete records
PREPARE FOR THE CONSULTATION
Information That Helps the Initial Review
Gather the available estate, financial and property information before speaking with counsel.
Use a secure method when providing Social Security numbers, financial account information, tax records or other sensitive documents.
FREQUENTLY ASKED QUESTIONS
Florida Probate, Wills and Estate Planning
Does having a will avoid probate?
Not necessarily. A will provides instructions for probate assets but does not itself remove those assets from the probate process.
What happens when someone dies without a will in Florida?
Florida intestacy law generally determines who inherits probate property. The court appoints a qualified person to administer the estate when formal administration is required.
What is the difference between formal and summary administration?
Formal administration is the full probate process and commonly involves a court-appointed personal representative. Summary administration is a simplified procedure available only when the statutory requirements are satisfied.
Can an estate qualify for summary administration after two years?
Potentially, yes. Florida law may permit summary administration when the decedent has been deceased for more than two years, subject to the estate documents and other legal requirements.
Can a family member sell estate property immediately?
Not necessarily. The person signing must have legally sufficient authority, and probate, homestead, beneficiary or court requirements may need to be addressed first.
Is a personal representative personally responsible for estate debts?
Estate debts are generally handled through the administration process. A personal representative may create personal exposure by improperly distributing assets, mishandling funds or failing to perform fiduciary responsibilities.
Does a trust always avoid probate?
No. A trust generally controls only assets properly transferred to it or otherwise made payable to it.
Can The Closing Agent handle the probate?
No. The Closing Agent provides title and settlement services. Probate legal services are provided separately by Barry Miller Law or another attorney selected by the family.
Can Barry Miller Law assist when estate property must be sold?
Potentially, subject to conflict review, acceptance of the matter and execution of a separate written engagement agreement.
How long does probate take?
There is no single reliable timeline. The duration depends on the type of administration, creditors, assets, court requirements, beneficiaries, taxes, disputes and real estate issues.
START WITH THE MOST IMMEDIATE NEED
Determine Who Can Act and What Must Be Protected
Whether the family needs to open an estate, address inherited property or create an estate plan before a crisis, early guidance can help establish the correct legal and practical priorities.
Important Legal Notice
The Closing Agent is a Florida title insurance agency and settlement company and is not a law firm. The Closing Agent does not provide probate, estate-planning or other legal advice or representation.
Probate, wills, trusts, estate planning and related legal services are provided separately by Barry Miller Law or another attorney selected by the client.
Legal representation is subject to conflict review, acceptance of the matter and execution of a separate written attorney-client engagement agreement.
Submitting an inquiry, providing documents or being named in a will does not create an attorney-client relationship or establish legal authority to act for an estate.
The information on this page is general and does not constitute legal, tax, financial or investment advice. The proper procedure and available services depend on the particular family, estate, assets, ownership records and property involved.