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Do All Wills Go Through Probate in Florida?
Having a will does not mean your family skips probate. In Florida, a will is what starts the probate process. It doesn't get you out of it.
If that surprises you, you're not alone. Many people think signing a will keeps their family out of court after they die. It's an easy mistake to make. But the difference matters, and knowing it now can save your family months of waiting and a lot of legal costs.
(Probate is the court process that settles a person's estate after they die. The court makes sure the will is valid, the bills are paid, and the property goes to the right people.)
A Will Does Not Avoid Probate. Here's What It Actually Does.
A last will and testament is a written set of instructions for the Florida court. It says who should get your property and who should be in charge of settling your estate. If you have young children, it can also say who you want to raise them. But a will doesn't take effect on its own. A court has to approve it first.
So does a will let you avoid probate? No. In probate, the court uses your will to decide who gets what. Without the court's approval, a will can't legally move property into someone else's name, close accounts, or hand anything over to the people you named.
Even with a will, your estate may still go through full probate administration. Whether it does depends mostly on what you own and how it's owned. It doesn't depend on whether you have a signed will.
Why Does a Will Go to Probate in Florida?
It comes down to who owns what.
Say something is in your name alone. It has no named beneficiary (a person you picked to get it), and no co-owner who automatically inherits it. When you die, no one can take it over without a court order. There's no other way to change the name on the ownership papers. Banks, title companies, and the DMV won't accept a will by itself as permission to release or transfer those things.
That's why Florida probate court exists. It gives the legal permission to move things from the name of the person who died to the people who should get them. The court picks someone to be in charge of the estate (Florida calls this person the "personal representative," and many people know the role as "executor"). The court approves the will. Then it issues orders that let the property change hands.
Some things pass on automatically. A bank account you own jointly with someone, or a life insurance policy with a named beneficiary, goes straight to the other person. A checking account in only your name does not. How something is owned is what decides whether probate is needed.
Filing a Will With the Court Is Not the Same as Opening Probate
This is where a lot of people get mixed up, so let's be clear.
Florida law treats these as two separate things. One is the duty to turn in the original will to the court. The other is the choice to start a full probate case.
Filing a Will With the Clerk of Court Is Mandatory
Under Florida Statute § 732.901, anyone who has the original will must take it to the Clerk of the Circuit Court in the county where the person who died lived. They have 10 days from when they find out about the death. This isn't optional. The law requires it even if the estate never goes through formal probate.
In real life, that means going to your local Florida Clerk of Court and handing in the original will. For example, if the person lived in the Clearwater area, you would go to the Pinellas County Clerk of Court. The clerk receives and keeps the will, and this step alone does not start a probate case.
Opening a Probate Estate Is a Separate Decision
Turning in the will is a legal duty. Starting a probate case is a separate step, and you only do it when the estate has property that needs a court's permission to transfer.
Suppose everything the person owned passes on automatically through named beneficiaries, joint ownership, or a trust. Then no probate case has to be started. The will is on file with the court, the duty is done, and the property goes to its new owners without a judge getting involved.
If there is property that needs the court's permission, an attorney files a request with the court, and formal administration (the standard court-supervised probate process) begins.
Assets That Pass Outside of Probate in Florida
The kinds of property below go to the right person automatically when someone dies. Your will doesn't control them, and they don't go through probate.
Accounts With Payable-on-Death or Transfer-on-Death Designations
Many bank and brokerage accounts let you name a person who gets the money when you die. That person shows the bank a death certificate and their ID, and the account is transferred to them. No court is involved.
Life Insurance and Retirement Accounts With Named Beneficiaries
Life insurance and retirement accounts (such as IRAs and 401(k)s) go straight to the person named on the account paperwork. Your will has no say over them, and the probate court isn't involved.
Property Held in Joint Tenancy With Rights of Survivorship
Sometimes two or more people own property together with "rights of survivorship." That means when one owner dies, the surviving owner automatically gets the property. This works for real estate and other kinds of property. In Florida, married couples often own their home a similar way, called "tenants by the entirety." It works much the same, and it can also protect the home from creditors of just one spouse while you're both alive.
Assets Held in a Revocable Living Trust
A revocable living trust is a legal arrangement that holds your property. When you die, the property goes to the people named in the trust. Because the trust owns the property and not you personally, no court order is needed to pass it on.
Can You Avoid Probate With a Will? No, But You Can Plan Around It.
The things that actually keep an estate out of Florida probate court are the ones listed above, set up on purpose as part of an estate plan. A will alone doesn't do it.
Two tools are especially useful for Florida residents:
Revocable Living Trusts
A revocable living trust is an arrangement where you move your property into a trust while you're alive. You stay in charge of it as the trustee, so you can still use and manage everything. When you die, the person you named as your successor trustee hands out the property according to the trust's instructions. No probate. No court. No waiting.
A trust takes more work to set up than a will. You have to change the ownership papers so your property is in the trust's name. An unfunded trust is one where you never moved your property into it, and it gives you no protection from probate at all.
Enhanced Life Estate Deeds (Lady Bird Deeds)
In Florida, a special kind of deed, commonly called an enhanced life estate deed or Lady Bird deed, can be used to leave your home to a person you choose without probate. You keep control of the home while you're alive. Depending on how the deed is written, you can generally sell the home without that person's permission. When you die, the home can go straight to the person you named, with no court case.
It can be one way for homeowners to take their main home out of probate.
Is Probate Required If There Is a Will and the Estate Is Small?
Not always. Florida has a faster, simpler court process for smaller estates called Summary Administration. It's available when the estate's property is worth $150,000 or less, not counting property that is protected from creditors' claims. It's also available if the person died more than two years ago. Summary Administration is quicker and costs less than the full process, but it still means filing with the court and getting a judge's order.
If someone dies without a will, Florida's inheritance rules decide who gets their property. Those rules are in Chapter 732 of the Florida Probate Code. A will lets you make those choices yourself instead. But with or without a will, the same thing applies: property in only your name, with no named beneficiary, needs a court process to be transferred.
What Happens to a Will After Death: A Practical Summary
Whoever has the original will turns it in to the Clerk of the Circuit Court within 10 days of finding out about the death. Florida Statute § 732.901 requires this no matter what happens next.
The family or an estate attorney looks at everything the person owned to see which property, if any, needs probate.
If nothing needs probate, no case is started. The property goes straight to the people named on the accounts or the co-owners.
If some property needs probate, an attorney asks the court to start either formal administration or, if the estate qualifies, summary administration.
The court approves the will, names the person in charge of the estate, and finally gives permission to hand the property to the people named in the will.
Talk to a Florida Estate Planning Attorney Before Assuming You're Covered
A signed will matters. It tells your family who you wanted to get your property and who you trusted to carry out your wishes. What it doesn't do is guarantee your family stays out of probate court.
What you own, how it's owned, who is named as beneficiary, and what other planning you've done all decide whether your family has to go through court after you're gone.
A Florida estate planning attorney can look at what you own now, tell you which things would need probate under your current plan, and walk you through specific steps to change that if it's your goal.
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