Florida Probate Checklist: Formal vs. Summary Requirements & Necessary Documents

If you are looking to pursue a probate in Florida, you likely have questions about where to start. Whether you are dealing with a small estate or a complex inheritance, understanding the specific requirements is critical to moving forward.

We frequently receive calls from individuals ready to bring a probate action but who lack the necessary documentation. This guide breaks down exactly what is needed to bring a probate proceeding in Florida, determining which type of probate applies to you, and how to prepare your case for success.

1. Formal vs. Summary Probate: Which One Do You Need?

Florida law generally divides probate into two main categories: Formal Probate and Summary Probate. The correct path depends on the value of the assets and how much time has passed since the decedent (the person who passed away) died.

When is Formal Probate Required?

Formal probate is the standard proceeding and typically takes longer. You generally must file for formal probate if:

• Asset Value: The assets subject to creditor claims are valued at greater than $75,000.

• Time Since Death: The decedent passed away less than two years ago.

Note on Exempt Assets: When calculating the $75,000 threshold, you can exclude specific exempt items, such as the Homestead property, up to two vehicles, and $20,000 in household items and furnishings. If the remaining assets (like bank accounts, money markets, or non-Homestead real property) exceed $75,000, a formal probate is usually required.

When Can You Use Summary Probate?

Summary probate is a streamlined process. You may qualify if:

• Time Since Death: The decedent passed away more than two years ago (at least two years and one day).

• Small Estate: The value of non-exempt assets is $75,000 or less, even if the decedent passed away less than two years ago.

Pro Tip: Even if you meet the requirements for Summary Probate, always consult an attorney. Certain situations may still mandate a Formal proceeding regardless of asset value.

2. The Essential Documents Checklist

To successfully open a case, the court requires specific proof. Without these documents, a probate action cannot be brought.

Proof of Death

The court must legally verify that the person has passed away before distributing assets to heirs or beneficiaries.

• Death Certificate: This is the most common requirement.

• Foreign Deaths: If the decedent was a Florida resident who passed away in another country, you must provide a comparable legal document from that country verifying the death.

The Last Will and Testament

If a Will exists, locating the original document is vital. It must be recorded with the court.

Is the Will Valid? For a Will (even a handwritten one) to be valid in Florida, it must meet strict signing requirements:

1. It must be signed by the testator (the person creating the will).

2. It must be signed by two witnesses.

3. Crucial Rule: The testator and both witnesses must all sign in each other’s presence. If witness signatures are missing, the Will is not valid.

The Importance of a Self-Proving Affidavit A self-proving affidavit is a document signed by a notary confirming that the witnesses and testator signed in each other's presence.

• With the Affidavit: The court can accept the Will "as is."

• Without the Affidavit: The Will is not necessarily invalid, but it creates extra steps. You may need to track down witnesses to sign new affidavits or hold a hearing to prove the Will’s validity.

3. Assets, Debts, and Creditors

You need a clear picture of the decedent's finances to determine the correct probate type.

• Asset Valuation: If you do not know the value of accounts, you generally must file for Formal probate. You cannot qualify for Summary probate without proving the assets are under the $75,000 limit (unless the 2-year mark has passed).

• Creditor Claims: Information on debts is helpful, as these must be addressed during probate.

The Homestead Exemption

A major exception regarding creditors involves Homestead Property.

• Creditors (including attorneys) generally cannot make claims against Homestead Property or up to two vehicles owned by the decedent.

• Even if the only asset being probated is the Homestead, creditor information is still gathered, but they typically cannot be paid from the value of the home.

4. Identifying Heirs: No One Can Be Left Out

One of the most common reasons probate is stalled—or prevented—is a failure to identify all legal heirs.

• Intestate Estates (No Will): If there is no Will, Florida law dictates who inherits. This requires a full family tree.

• Mandatory Inclusion: You must disclose your relationship (biological or legally adopted) and list all potential heirs. This includes step-children who were legally adopted.

• Estrangement Doesn’t Matter: Even if an heir had no contact with the decedent for years or "doesn't want anything to do with it," they must be named and notified.

• Heir Searches: In complex cases involving distant relatives (nieces, nephews, grandchildren), an official "heir search" may be required before the case can proceed.

Need Help Navigating Florida Probate?

Probate can be complicated, especially when dealing with missing documents or complex family dynamics.

If you are in Florida and need assistance, don't hesitate to reach out to atCause Law Office, "the non-stuffy attorneys." We are here to help you determine the right path for your specific situation. Contact us and Schedule your Free Consultation.