Florida — Which Assets Must Go Through Probate Court and Which Pass Directly to Survivors

Detailed Answer

Overview: In Florida, whether an asset must be administered by the court (probate administration) or passes directly to survivors depends primarily on how the asset is titled and whether it has a valid beneficiary designation or transfer-on-death arrangement. Court administration is required for assets that are solely in the decedent’s name with no beneficiary or survivorship mechanism. Many assets, however, pass outside probate to surviving owners or named beneficiaries.

Assets that typically go through court administration (probate):

• Solely owned property titled only in the decedent’s name, with no joint owner and no beneficiary designation (for example, a bank account or car titled solely in the decedent’s name).
• Personal property owned only by the decedent (furniture, jewelry, collectibles) when there is no alternate transfer arrangement.
• Real estate owned solely by the decedent (unless it is held as joint tenants with right of survivorship, tenancy by the entireties, placed in a revocable trust, or otherwise has a transfer device).
• Assets for which the decedent’s estate must pay debts or creditors and there is no effective nonprobate mechanism to reach the asset.

Florida law sets out the rules and procedures for opening and administering estates in the Probate Code. See the Florida Statutes, chapters on intestate succession and administration (Ch. 732 and Ch. 733) and summary administration (Ch. 735) for more detail: Fla. Stat. Ch. 733 (Administration of Estates), Fla. Stat. Ch. 732 (Intestate Succession), Fla. Stat. Ch. 735 (Summary Administration).

Assets that usually pass directly to survivors (outside probate):

• Jointly owned property with right of survivorship: Real or personal property titled in joint tenancy with right of survivorship or tenancy by the entireties passes automatically to the surviving owner(s) on death. The title, not the will, controls transfer.
• Beneficiary-designated assets: Life insurance policies, annuities, IRAs, 401(k)s and other retirement accounts transfer to the named beneficiary(ies) directly without probate.
• Payable-on-death (POD) or Transfer-on-death (TOD) accounts: Bank accounts and some securities that have valid POD or TOD designations pass directly to the named payee on death.
• Assets held in a trust: Assets owned by a revocable or irrevocable trust pass according to the trust document and generally avoid probate.

These nonprobate mechanisms are effective because title or a beneficiary designation governs who has legal ownership at death. Courts generally will not administer assets that are already owned by someone else or that automatically pass by contract or title.

Special rules and important exceptions in Florida:

• Homestead property: Florida’s Constitution provides special protections for homestead property (Article X, section 4). Homestead receives unique treatment and may limit the ability to transfer by will in certain situations; that can affect whether the probate process is necessary. See the Florida Constitution for the homestead provisions: Florida Constitution, Article X (Homestead).
• Summary administration for small estates: If the estate qualifies as small under Florida law, a simplified and faster court process called summary administration may apply instead of full administration. Summary administration can be used when the value of the probate estate is below certain thresholds or the decedent has been dead for more than two years. See Fla. Stat. Ch. 735 for details.
• Conflicts between title and beneficiary forms: Proper, up-to-date beneficiary designations and clear titling usually control. A will does not override a valid beneficiary designation or a survivorship title. If multiple documents conflict (for example, an old beneficiary form and a later will), a court or an attorney may need to resolve the conflict.

Practical examples:

• If Jane has a bank account titled only in her name and no POD beneficiary, the account generally becomes part of Jane’s probate estate and will require court administration unless its value falls within a summary-administration threshold. If the account had a POD payee named, it would pass directly to that payee.
• If Bob and his spouse hold their house as tenancy by the entireties or joint tenants with a right of survivorship, the surviving spouse automatically owns the house without probate.
• If Susan named her daughter as beneficiary of her IRA, that IRA passes directly to the daughter upon Susan’s death and generally does not go through probate.

Bottom line: Title and beneficiary designations determine whether assets must be probated. Solely titled assets with no beneficiary generally require court administration; joint ownership, beneficiary designations, POD/TOD forms, and trusts generally allow assets to pass outside probate.

For legal rules and procedures governing probate and small estates in Florida, consult Florida Statutes chapters 732, 733, and 735:
Ch. 732,
Ch. 733,
Ch. 735.

Next steps: Review the title documents and beneficiary forms for major assets. If you are uncertain whether an asset will require probate or how to transfer it, consult an attorney experienced in Florida probate and estate planning.

Disclaimer: This information is educational only and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed Florida attorney.

Helpful Hints

• Make an inventory: list bank accounts, retirement accounts, life insurance policies, vehicles, real estate, and how each is titled.
• Check beneficiary designations and update them after major life events (marriage, divorce, births, deaths).
• Confirm how real property is titled (sole name, joint tenancy, tenancy by entireties, trust ownership).
• Consider a revocable living trust to avoid probate for assets you control during life.
• Keep originals or certified copies of wills and trust documents in a safe, known location and tell a trusted person where they are.
• If the estate seems small or uncomplicated, ask whether summary administration under Florida law could apply: see Ch. 735 (Summary Administration).
• If you expect creditor claims or complex disputes (multiple wills, unclear beneficiary designations, homestead issues), seek probate counsel early.
• When in doubt, get an attorney’s written opinion before assuming an asset will or will not go through probate.