In Florida, assets must go through probate when they were owned solely in the decedent’s name at death and have no built-in mechanism to transfer ownership automatically. Anything that already names a living beneficiary, is held jointly with survivorship rights, or sits inside a properly funded trust generally skips probate entirely. The practical question is never “did this person have a will?” but rather “how was each asset titled the moment they died?”
That distinction trips up more families than almost anything else I see. People assume a will controls everything. It doesn’t. A will only governs assets that have nowhere else to go — and in many estates, that turns out to be a surprisingly short list. Below I’ll walk through what falls into probate in Florida, what passes around it, and the gray areas where guardianship history or a contested account can drag an otherwise simple estate into court.
What Counts as a Probate Asset in Florida
A probate asset is any property the decedent owned, individually, that does not transfer by operation of law or by contract. Florida’s probate process is governed primarily by Chapter 733 of the Florida Statutes, and the personal representative’s job is to gather these assets, pay valid creditor claims, and distribute what remains under the will or — if there is no will — under Florida’s intestacy rules in Chapter 732.
The most common probate assets include:
- Real estate titled solely in the decedent’s name, or held as tenants in common, with no surviving co-owner who takes by survivorship.
- Bank accounts in the decedent’s name alone with no payable-on-death (POD) designation.
- Brokerage and investment accounts held individually without a transfer-on-death (TOD) registration.
- Vehicles, boats, and personal property titled solely to the decedent.
- Business interests — an LLC membership interest or closely held shares — that aren’t governed by a buy-sell agreement or trust.
- Life insurance or retirement accounts payable to “the estate”, or where every named beneficiary predeceased the owner and no contingent was named.
That last point catches people off guard. A 401(k) or IRA is normally a non-probate asset — but if the beneficiary form lists the estate, or is simply blank, those funds drop straight into the probate pile and become exposed to creditors. The form, not the account type, controls.
Solely Owned Real Estate Is the Big One
In South Florida, the single asset that most often forces a family into probate is the home. If Mom owned her Boca Raton condo in her name alone and died with only a will, that condo cannot be sold or transferred until the court appoints a personal representative and the property clears the estate. Florida’s homestead rules add another layer: homestead property generally passes outside the reach of most creditors and is distributed under Article X, Section 4 of the Florida Constitution and Florida Statute 732.401, but it still typically requires a court order — a petition to determine homestead status — to confirm clean title. So homestead is “protected,” but it is rarely “automatic.”
What Skips Probate in Florida
Non-probate assets transfer the instant someone dies, by contract or by title, without any judge signing off. These are the tools good estate planning leans on precisely because they keep property out of court.
- Assets with a named beneficiary. Life insurance, IRAs, 401(k)s, and annuities pay directly to the living beneficiary on file. The will never touches them.
- POD and TOD accounts. Under Florida Statute 655.82, a bank or investment account with a payable-on-death or transfer-on-death designation passes directly to the named recipient.
- Jointly held property with right of survivorship. Real estate or accounts owned as joint tenants with right of survivorship — or, between spouses, as tenants by the entirety — pass automatically to the surviving owner.
- Property held in a revocable living trust. Assets retitled into a properly funded trust are controlled by the trust document and distributed by the trustee, never by the probate court.
- Enhanced life estate (“Lady Bird”) deeds. Florida recognizes these deeds, which let an owner keep full control during life while the property passes automatically to a remainder beneficiary at death.
The common thread is that someone or something is already lined up to receive the asset. Probate exists to answer the question “who gets this?” When the answer is already baked into the title or contract, there’s nothing for the court to decide.
The Trust Funding Trap
Here’s the mistake I correct constantly: a person pays for a beautiful revocable trust, signs it, files it away — and never retitles a single asset into it. An unfunded trust is just paper. If the house deed still reads in the individual’s name rather than “as Trustee of the Smith Family Trust,” that house goes through probate despite the trust existing. The plan only works if the asset’s title actually points at the trust. Funding is the step that turns a trust from a document into a probate shield.
Florida’s Shortcut Procedures: Summary Administration and Disposition Without Administration
Not every estate needs full formal administration. Florida offers lighter paths when the numbers are small enough.
Summary administration (Florida Statute 735.201) is available when the probate estate’s value is $75,000 or less — excluding exempt property like protected homestead — or when the decedent has been dead for more than two years. It’s faster and skips appointing a personal representative, though creditor exposure rules still apply within that two-year window.
Disposition of personal property without administration (Florida Statute 735.301) is the smallest path, reserved for estates with only modest personal property and no real estate, used mainly to reimburse funeral costs or final medical bills.
These procedures shrink the process, but they don’t change the core analysis: only probate assets are counted, and only probate assets are distributed through them.
Where Guardianship History Complicates the Picture
Because much of my practice involves clients moving from a contested guardianship into the administration of an estate, I want to flag a wrinkle that pure “estate planning” articles ignore. When someone spent their final years under a Florida guardianship, the picture of “what was titled to whom” can be messy. A guardian of the property may have liquidated accounts, sold real estate, or changed how assets were held — sometimes appropriately, sometimes not.
If a guardian moved a solely owned account into a joint account, or if a beneficiary designation was altered during a period of alleged incapacity, those transfers can be challenged after death. Suddenly an asset that “skipped probate” is pulled back into dispute, and the line between probate and non-probate property becomes a litigated question rather than a clerical one. Contested designations and questionable transfers are a frequent flashpoint in , and the same fact patterns recur in Florida guardianship-to-probate transitions.
When that happens, the existence of a non-probate label on an account is not the end of the conversation. A personal representative — or a disinherited heir — may petition the court to set aside a transfer procured by undue influence or made while the owner lacked capacity. That is exactly the kind of situation where the tidy chart of probate-versus-non-probate assets stops being a checklist and becomes a courtroom argument.
A Practical Way to Audit Your Own Assets
Want to know how much of your estate would actually land in probate? Go account by account and ask three questions:
- Is there a named, living beneficiary or POD/TOD designation? If yes, it skips probate.
- Is it owned jointly with survivorship, or by the entirety with a spouse? If yes, it skips probate.
- Is it titled in the name of a funded trust? If yes, it skips probate.
Anything that answers “no” to all three is a probate asset. Run that test honestly and most people find one or two stragglers — an old checking account, a paid-off car, a piece of inherited land — that would force their family into court over a few thousand dollars. Cleaning those up while you’re alive is far cheaper than litigating them later.
Probate rules vary meaningfully from state to state. If you or a family member owns property up north, it’s worth understanding how the equivalent process works there too — for example, differ from Florida’s summary and formal tracks. For Florida-specific matters, our team handles the full range of , and you can review the planning side on our wills and estate planning page or read more about the Florida probate process in detail.
If a guardianship is winding down, an estate is opening, or a beneficiary designation looks suspect, don’t guess at which assets belong in probate. Contact our South Florida probate attorneys to map your estate before a small titling problem becomes a contested one.
Frequently Asked Questions
Does having a will avoid probate in Florida?
No. A will is the instruction manual the probate court follows; it does not bypass the court. A will only controls assets that have no beneficiary, no survivorship co-owner, and no trust ownership — meaning a will and probate go hand in hand rather than avoiding each other.
Do retirement accounts and life insurance go through probate?
Usually not. IRAs, 401(k)s, annuities, and life insurance pay directly to the named beneficiary outside probate. They only fall into probate if the beneficiary is “the estate,” the form is blank, or every named beneficiary died before the owner with no contingent named.
What is the probate threshold for summary administration in Florida?
Under Florida Statute 735.201, summary administration is available when the probate estate (excluding exempt property such as protected homestead) is valued at $75,000 or less, or when the decedent has been deceased for more than two years.
Can a non-probate transfer be challenged after death?
Yes. Joint account changes, POD designations, or deeds executed during a period of incapacity or alleged undue influence — common in guardianship situations — can be set aside by the court. That can pull an asset that appeared to skip probate back into a contested estate proceeding.
Does Florida homestead property go through probate?
Homestead is constitutionally protected from most creditors and passes to heirs under Florida Statute 732.401, but it generally still requires a court order determining homestead status to confirm clear, marketable title — so it is protected, but not entirely automatic.
Frequently Asked Questions
Does having a will avoid probate in Florida?
No. A will is the instruction manual the probate court follows; it does not bypass the court. A will only controls assets that have no beneficiary, no survivorship co-owner, and no trust ownership — meaning a will and probate go hand in hand rather than avoiding each other.
Do retirement accounts and life insurance go through probate?
Usually not. IRAs, 401(k)s, annuities, and life insurance pay directly to the named beneficiary outside probate. They only fall into probate if the beneficiary is the estate, the form is blank, or every named beneficiary died before the owner with no contingent named.
What is the probate threshold for summary administration in Florida?
Under Florida Statute 735.201, summary administration is available when the probate estate (excluding exempt property such as protected homestead) is valued at $75,000 or less, or when the decedent has been deceased for more than two years.
Can a non-probate transfer be challenged after death?
Yes. Joint account changes, POD designations, or deeds executed during a period of incapacity or alleged undue influence — common in guardianship situations — can be set aside by the court. That can pull an asset that appeared to skip probate back into a contested estate proceeding.
Does Florida homestead property go through probate?
Homestead is constitutionally protected from most creditors and passes to heirs under Florida Statute 732.401, but it generally still requires a court order determining homestead status to confirm clear, marketable title — so it is protected, but not entirely automatic.
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For more on our Florida practice, see our overview of Florida probate administration. Morgan Legal Group's affiliated New York office also handles .
