The Non-Citizen Spouse Problem: Why the Marital Deduction May Not Apply

Under federal law, a U.S. citizen can leave an unlimited amount to a surviving spouse free of federal estate tax through the unlimited marital deduction. That deduction is generally not available when the surviving spouse is not a U.S. citizen. Congress assumed a non-citizen spouse might leave the country with the inheritance before any estate tax could be collected.

The standard solution is a Qualified Domestic Trust, or QDOT, authorized under Internal Revenue Code §2056A. Property passes into the QDOT for the surviving non-citizen spouse, deferring federal estate tax until distributions of principal are made or the spouse dies. A QDOT must meet strict requirements, including a U.S. trustee and, for larger trusts, security to ensure tax collection. In Florida, these trusts are created and administered under Chapter 736, the Florida Trust Code. If your spouse is a green-card holder or here on a visa, this is a conversation to have before signing a plan, not after.

Estate Tax Exposure for Non-Resident Aliens

Immigration status also drives how the federal estate tax itself applies. A non-resident alien who is not domiciled in the United States is taxed only on U.S.-situated assets, such as Florida real estate or shares of U.S. companies, and receives a far smaller exemption than a citizen or domiciliary. A retiree who buys a Palm Beach condo while keeping a home and life abroad may be surprised to learn that the condo alone can trigger U.S. estate tax. Domicile is a fact-intensive question shaped by where you intend to live permanently, which is precisely where a pending green-card or naturalization case becomes relevant to your estate plan.

Florida Wills, Homestead, and Heirs Who Live Overseas

A valid Florida will must satisfy §732.502: it must be signed by the testator and witnessed by two witnesses, all in each other’s presence. A will drafted abroad may not meet these formalities, so newcomers should have a Florida-compliant will prepared after they arrive. Florida’s homestead protections add another layer; constitutional restrictions limit how a homestead can be devised when a spouse or minor child survives, regardless of citizenship.

When heirs live in another country, probate becomes slower and more document-intensive. Foreign heirs often need consular-authenticated identity documents, apostilles, and sometimes a U.S. agent to act on their behalf. Naming a personal representative and successor trustees who can realistically serve, and a funded revocable trust to avoid probate altogether, can spare an out-of-country family months of consular correspondence.

Guardianship, Powers of Attorney, and Travel for Visa Matters

Parents who are immigrants should name guardians for minor children with special care, especially if the most natural guardian lives abroad or lacks immigration status to remain in the U.S. A Florida durable power of attorney and a designation of health care surrogate are equally important for clients who travel internationally for consular interviews or visa processing; if you are out of the country when a financial or medical decision must be made here, these documents let a trusted person act without court involvement.

Coordinating With Your Immigration Case

An estate plan and an immigration case should be built together. The timing of naturalization can change whether the marital deduction applies; a beneficiary’s status can affect how and when they receive an inheritance; and decisions about domicile ripple through both areas. Our firm focuses on Florida estate planning and does not handle immigration matters, so we routinely coordinate with immigration counsel on the other side of the file. For clients pursuing family green cards or other status changes, we recommend working with a dedicated immigration attorney while we structure the estate plan around that case. Many of our Russian-speaking clients prefer to consult a Russian-speaking immigration attorney so nothing is lost in translation on the immigration side.

If you are new to Palm Beach, have family overseas, or share your life with a non-citizen spouse, the safest path is to address both questions at once. The right plan protects your assets from unnecessary tax and spares your heirs, wherever they live, from an avoidable ordeal.

I practice probate law here in Palm Beach, and most of the families I meet have never opened an estate before and never expected to. Someone died, there is property with their name on it, and a bank or a title company has just told them they cannot touch it without “going through probate.” This guide walks through what that actually means and how the process starts.

What “opening a probate estate” actually means in Florida

Probate is the court-supervised process of settling a deceased person’s affairs. When we talk about opening the estate, we mean the front end: getting the case filed, getting someone legally appointed to act, and getting the court’s blessing to proceed. Until that happens, no one—not even the named executor in the will—has authority to sell the house, close the brokerage account, or write a check from the decedent’s funds.

Florida law splits probate into a few tracks, and which one you open matters a great deal for how much time, money, and paperwork you are signing up for. The two main forms of administration are governed by the Florida Probate Code, found in Chapters 731 through 735 of the Florida Statutes, and fleshed out by the Florida Probate Rules.

Formal administration vs. summary administration

• Formal administration is the standard, full process. It is required when the estate’s non-exempt assets exceed $75,000, or when a personal representative needs ongoing authority (for example, to run a business, sell real estate, or fight a will contest). This is the path most contested or sizable estates follow.
• Summary administration is a streamlined alternative available under Florida Statutes Chapter 735 when the estate is worth $75,000 or less (excluding exempt property), or when the decedent has been dead for more than two years. There is no personal representative appointed in summary administration; the court simply orders distribution.
• Disposition without administration is a narrow option for very small estates where the only assets were used up by final illness and funeral expenses. It is rare and not really “opening an estate” in the usual sense.

If you are not sure which track applies, that is a question worth answering before you file anything—choosing wrong wastes weeks. The differences between these procedures track closely with how other states organize their probate options; for a useful comparison, Morgan Legal’s overview of shows how a neighboring jurisdiction draws similar lines.

Where you file: jurisdiction and venue in Palm Beach

Probate is filed in the circuit court, not the county court, and venue is generally the county where the decedent was domiciled at death. For our clients, that usually means the Fifteenth Judicial Circuit in and for Palm Beach County. If the decedent was a Florida resident, domicile is the controlling factor; if they were a nonresident who owned property here, venue lies in the county where that property sits—what we call ancillary administration.

Domicile sounds simple until it isn’t. Snowbirds who split time between, say, New York and Palm Beach can leave behind a genuine fight over which state has primary jurisdiction, because each state wants to tax and govern the estate. If a parallel proceeding is needed up north, an out-of-state probate firm can coordinate; Morgan Legal’s office handling is one example of the kind of counsel a cross-state estate may require alongside Florida administration.

Step by step: how to open the estate

1. Locate the original will. Florida requires the original document, not a copy. Under Florida Statutes §732.901, whoever has custody of the will must deposit it with the clerk of court within 10 days of learning of the death. A lost or copy-only will can still sometimes be admitted, but it triggers a heavier burden of proof and is a common flashpoint in disputes.
2. Order certified death certificates. You will need at least one certified copy for the court, and several more for banks and transfer agents. Order extras; you will use them.
3. Identify the personal representative. This is Florida’s term for what other states call an executor or administrator. If there is a will, it names the person. If not, §733.301 sets the priority order—surviving spouse first, then those chosen by a majority of heirs, then the heir nearest in degree.
4. Confirm the nominee is qualified. Not everyone can serve. Florida disqualifies anyone convicted of a felony, anyone mentally or physically unable to perform the duties, and most nonresidents who are not close relatives of the decedent (§733.302–.304). I have seen estates stall because the out-of-state child named in the will simply was not eligible to serve alone.
5. Retain an attorney. In a formal administration, this is not optional. Florida Probate Rule 5.030 requires the personal representative to be represented by a licensed attorney unless the PR is the sole interested person. The estate, not you personally, generally pays reasonable fees.
6. File the Petition for Administration. This is the document that formally opens the estate. It identifies the decedent, the heirs and beneficiaries, the approximate value and nature of the assets, and asks the court to admit the will and appoint the personal representative.
7. Take the oath and post bond (if required). The personal representative signs an oath accepting the role and designates a resident agent for service of process. The court may require a bond unless the will waives it or all beneficiaries agree.
8. Receive Letters of Administration. Once the judge signs the order admitting the will and appointing the PR, the clerk issues letters. This is the document that unlocks everything—banks, brokerages, and title companies all want to see it before they will deal with you.

What documents you will gather to file

• The original will and any codicils
• A certified copy of the death certificate (the version without cause of death is usually filed publicly)
• The petition for administration and proposed order
• The oath of personal representative and designation of resident agent
• A list of known assets, debts, and interested persons

For families who want a plain-language primer on the underlying documents themselves, our overview of Florida wills covers what makes a will valid and self-proving, which directly affects how smoothly probate opens.

After the estate is open: what comes next

Opening the estate is the beginning, not the end. Once letters issue, the personal representative has a series of duties under Chapter 733:

• Notice to creditors. The PR publishes a notice to creditors and serves known creditors directly. Creditors then have a limited window—generally three months from first publication, or 30 days from being served—to file claims (§733.702). This creditor period is often what determines how long an estate stays open.
• Notice of administration. Beneficiaries and other interested persons receive formal notice, which starts their clock to object to the will, the PR’s appointment, or the venue. In a contested family, this is the moment objections surface.
• Inventory. The PR files an inventory of estate assets, typically within 60 days of appointment.
• Pay debts and taxes, then distribute. Valid claims and any taxes are paid in the statutory order of priority before beneficiaries receive their shares.

A straightforward, uncontested formal administration in Palm Beach often runs six months to a year. Add a will contest, a creditor dispute, or hard-to-value assets, and that timeline stretches considerably. You can see how we approach the broader process on our Florida probate page, and Morgan Legal’s Florida office also outlines its for families weighing their options.

Where estates go sideways at the opening stage

Because this firm focuses on families facing will contests and disputes, I will be candid about where the early filing turns into a fight. The opening of an estate is, by design, the procedural moment when objections must be raised. A few patterns recur:

• Competing wills. A later will surfaces after an earlier one is filed, and the question becomes which document the court admits. The choice changes who inherits and who controls the estate.
• The wrong personal representative. An heir believes the nominated PR is unsuitable—self-dealing, hostile, or simply unqualified—and petitions to have someone else appointed. Raising this at the opening stage is far cleaner than trying to remove a PR who has already taken control of assets.
• Undue influence and capacity claims. A child who was written out, or written down, in a will signed late in the parent’s life often suspects the document does not reflect the parent’s true wishes. These challenges must be timely, which is why the notice of administration deadline matters so much.
• Homestead and exempt property disputes. Florida’s homestead protections are powerful and idiosyncratic. Whether the family residence is “homestead” affects creditors, the surviving spouse, and the children, and it frequently has to be sorted out as the estate opens.

The practical lesson is the same one I give every client: the early days of an estate are not just paperwork. They set the legal posture for everything that follows. Once deadlines to object pass, they are generally gone.

Should you handle it yourself?

If you are the sole heir of a tiny, debt-free estate, summary administration is sometimes manageable with light guidance. For anything larger—real estate, multiple beneficiaries, blended families, or even a whiff of conflict—a formal administration with counsel is both legally required and genuinely worth it. The cost of getting the opening wrong is measured in months and, sometimes, in inheritances lost to missed deadlines.

If you have lost a family member in Palm Beach County and you are not sure where to begin, or you suspect the will being offered for probate is not what your loved one intended, reach out for a consultation. The first conversation is usually about figuring out which door you are actually standing in front of—and that is the most important decision you will make in the whole process.

Frequently Asked Questions

How much does it cost to open a probate estate in Florida?

Costs include a court filing fee (typically a few hundred dollars in Palm Beach County), the cost of certified death certificates and newspaper publication, and attorney’s fees. In a formal administration, reasonable attorney’s fees are set by statute as a percentage of the estate or by agreement, and they are generally paid from estate assets rather than out of the personal representative’s own pocket.

How long do I have to file probate after someone dies in Florida?

There is no single hard deadline to open the estate itself, but the custodian of the original will must deposit it with the clerk within 10 days of learning of the death under Florida Statutes 732.901. Practically, you should open the estate promptly, because creditor and beneficiary deadlines do not start until the case is filed, and waiting can complicate access to assets.

Do I need a lawyer to open a probate estate in Florida?

In most cases, yes. Florida Probate Rule 5.030 requires the personal representative in a formal administration to be represented by an attorney, unless the personal representative is the only interested person. Summary administration sometimes does not require counsel, but a lawyer is strongly advised whenever the estate is contested, owns real estate, or has multiple beneficiaries.

What is the difference between an executor and a personal representative in Florida?

They are the same role. Florida uses the term ‘personal representative’ for the person appointed to administer an estate, whether they were named in a will (what other states call an executor) or appointed by the court when there is no will (an administrator). The personal representative’s authority comes from the Letters of Administration issued by the court.

Can probate be opened in Florida if the will is lost?

Yes, but it is harder. Florida prefers the original will, and a lost or copy-only will raises a legal presumption that the decedent destroyed it intending to revoke it. To admit a lost will, you generally must prove its contents and overcome that presumption with specific evidence, which is a common source of disputes and a reason to involve a probate attorney early.

I have sat across the table from a lot of grieving families in Palm Beach, and I can tell you the fight is rarely really about the money. It is about a daughter who feels written out, a second spouse the children never trusted, a caregiver who showed up late and left rich. The legal questions are technical, but the wounds are personal. This article walks through how heir disputes actually unfold in Florida, what the law lets you challenge, and where families tend to win and lose.

Why Disputes Among Heirs Happen in the First Place

Most estate fights trace back to a handful of recurring situations. Knowing the pattern helps you see your own case more clearly.

• Blended families. A surviving second spouse and the decedent’s children from a first marriage almost always have competing interests. Florida’s homestead and elective share rules make this especially combustible.
• A last-minute will or amendment. A document signed weeks before death, leaving everything to one person, is the single most common trigger for litigation.
• An isolated, dependent elder. When one adult child or a new “friend” controls access to an aging parent, the other heirs rightly start asking questions.
• A personal representative who goes quiet. Beneficiaries who cannot get an accounting or a straight answer tend to assume the worst, and sometimes they are right.
• Ambiguous or contradictory documents. A will that conflicts with a trust, a beneficiary designation that contradicts both, or handwritten notes that no one can interpret.

None of these guarantees a lawsuit. But each one creates the conditions where a dispute can take root and grow.

Will Contests: The Core of Florida Estate Litigation

A will contest is a formal objection to the validity of a will offered for probate. In Florida, you do not get to challenge a will simply because you think it is unfair. The law recognizes specific legal grounds, and you must prove one of them. Broadly, those grounds are lack of testamentary capacity, undue influence, fraud, duress, mistake, and improper execution.

Lack of Testamentary Capacity

Florida sets a fairly low bar for capacity. Under longstanding law, a person making a will must generally understand the nature and extent of their property, know who their natural heirs are, and grasp the practical effect of the document they are signing. They can be forgetful, ill, even diagnosed with early dementia, and still have a lucid moment in which a valid will is signed. That is why a capacity challenge usually rises or falls on contemporaneous evidence: medical records, the drafting attorney’s notes, and testimony from people who saw the testator around the signing date.

Undue Influence

This is the heart of most Palm Beach will contests. Undue influence means someone overpowered the free will of the testator so that the document reflects the influencer’s wishes, not the decedent’s. Florida courts look at the factors laid out in the well-known case In re Estate of Carpenter, including whether the alleged influencer was present when the will was executed, helped procure the attorney, knew the contents in advance, and gave instructions on its preparation.

Here is the part that changes cases: under Florida law, if a contestant shows that a substantial beneficiary occupied a confidential relationship with the decedent and was active in procuring the will, a presumption of undue influence arises and the burden shifts to that beneficiary to prove the will was proper. That burden shift is often the difference between a settlement and a dismissal.

Fraud, Duress, and Improper Execution

Fraud covers situations where the testator was lied to about the contents of the document or about facts that drove their decision. Duress involves threats or coercion. Improper execution is more mechanical but no less fatal: Florida Statute 732.502 requires that a will be signed by the testator and witnessed by two competent witnesses, all present together. Miss those formalities and the will can fail regardless of intent.

Deadlines That Can End Your Case Before It Starts

Florida is unforgiving about timing, and missed deadlines kill more meritorious claims than weak facts do. A few are worth committing to memory.

1. Objections to a will. Once you are served with formal notice of administration, you generally have three months to file an objection challenging the will’s validity or the qualification of the personal representative, under Florida Statute 733.212. Wait too long and your objection is barred.
2. The elective share. A surviving spouse who wants to claim the elective share, roughly 30 percent of the elective estate under Chapter 732, must elect within the window set by statute, generally six months after service of the notice of administration or two years after death, whichever is earlier.
3. Creditor claims. Creditors face their own statutory periods, and disputes over those claims are a frequent form of estate litigation.
4. Trust disputes. Challenges to a trust are governed by the Florida Trust Code (Chapter 736) and carry their own limitations periods, sometimes as short as six months after a qualified trustee notice.

If you suspect a problem, the worst thing you can do is wait. The probate process moves on a clock, and many of stem from acting too late rather than too early.

Beyond Will Contests: Other Forms of Heir Litigation

Not every estate fight is a will contest. Some of the most contested matters in Palm Beach probate court never touch the validity of a will at all.

Breach of Fiduciary Duty by the Personal Representative

The personal representative (Florida’s term for an executor) owes beneficiaries duties of loyalty, prudence, and full disclosure. When they self-deal, pay themselves excessive fees, fail to account, or let estate assets waste, beneficiaries can petition the court to compel an accounting, surcharge the representative for losses, or remove them entirely under Florida Statute 733.504. Removal is a powerful remedy, and a credible threat of it often resolves a dispute on its own.

Trust Contests and Trustee Disputes

As estate planning has shifted toward revocable living trusts, more litigation now centers on trusts rather than wills. The grounds overlap, undue influence and capacity chief among them, but the procedure runs through the Florida Trust Code. Trustees can be compelled to provide accountings, removed for misconduct, and surcharged, much like personal representatives.

Homestead and Elective Share Fights

Florida’s constitutional homestead protection restricts how a primary residence can be devised when there is a surviving spouse or minor child. These rules routinely override what a will actually says, and the resulting disputes between a surviving spouse and the decedent’s children are among the most technical in all of Florida probate.

Tortious Interference With an Expected Inheritance

Florida recognizes, in limited circumstances, a claim for tortious interference with an expected inheritance, typically when someone used fraud or undue influence to divert assets and the probate court cannot fully remedy the harm. It is a narrow tool, but a meaningful one in the right case.

How These Disputes Actually Get Resolved

Television suggests every estate fight ends in a dramatic courtroom verdict. Reality is quieter. The overwhelming majority of Florida estate disputes settle, often at court-ordered mediation, which most circuit courts in Palm Beach County require before trial.

There are good reasons for that. Litigation is expensive, and the fees usually come out of the very estate everyone is fighting over. Trials are public, and family laundry gets aired. And outcomes are uncertain, because so much turns on witness credibility and a judge’s read of intent. A well-structured settlement can preserve relationships, or at least end the bleeding, in a way a verdict never will.

That said, settling from a position of weakness is a mistake. The leverage in these cases comes from preparation: medical records pulled early, the drafting attorney deposed, financial accounts traced, the Carpenter factors documented. The families who do best are the ones who treat a will contest like the high-stakes civil litigation it is. The mechanics of differ by state, but the principle holds everywhere: evidence gathered early wins cases.

Practical Steps If You Suspect a Problem

• Get the documents. Request a copy of the will, any trust, and the court file. As a beneficiary or interested person, you have rights to information.
• Preserve evidence. Save texts, emails, voicemails, and notes. Do not delete anything, even unhelpful material.
• Identify the deadline. Find the date you were served with notice and count forward. The three-month objection window is short.
• Avoid confrontation with the personal representative. Emotional outbursts become exhibits. Let your attorney communicate.
• Talk to a probate litigation attorney quickly. Many of these claims live or die on timing and on early access to medical and financial records.

If you are on the other side, named as personal representative and facing accusations, the same discipline applies. Account fully, keep estate funds untouched, and get counsel before you respond to a threat.

When to Call a Palm Beach Probate Litigation Attorney

You do not need a lawyer for every probate. You very much need one the moment a dispute appears credible: a suspicious last-minute will, a personal representative who will not communicate, a sibling who controlled an isolated parent, or a deadline bearing down. These cases are won or lost in the first weeks, on evidence that disappears and clocks that run.

Our firm handles contested probate, will and trust challenges, and fiduciary disputes throughout Palm Beach County. You can learn more about our broader probate work, including our , or review the basics of wills and how they are validated and the overall Florida probate process. When you are ready to talk through your situation, reach out for a confidential consultation and bring whatever documents you have.

Frequently Asked Questions

How long do I have to contest a will in Florida?

Once you are served with formal notice of administration in a Florida probate, you generally have three months to file an objection challenging the will’s validity or the personal representative’s qualification, under Florida Statute 733.212. Missing that deadline usually bars the challenge, so it is critical to act quickly and consult a probate litigation attorney as soon as you suspect a problem.

What are the legal grounds for challenging a will in Florida?

Florida recognizes specific grounds: lack of testamentary capacity, undue influence, fraud, duress, mistake, and improper execution (for example, a will not properly signed and witnessed under Florida Statute 732.502). You cannot contest a will simply because it seems unfair; you must prove one of these recognized grounds with evidence.

What is undue influence in a Florida will contest?

Undue influence means someone overpowered the testator’s free will so the document reflects the influencer’s wishes rather than the decedent’s. Florida courts apply the In re Estate of Carpenter factors. If a substantial beneficiary had a confidential relationship with the decedent and was active in procuring the will, a presumption of undue influence can arise, shifting the burden to that beneficiary.

Can I remove a personal representative who is mismanaging the estate?

Yes. A personal representative owes beneficiaries duties of loyalty, prudence, and disclosure. If they self-deal, fail to provide an accounting, or waste assets, beneficiaries can petition the court to compel an accounting, surcharge the representative for losses, or seek removal under Florida Statute 733.504.

Do most Florida estate disputes go to trial?

No. The large majority settle, often at court-ordered mediation, which Palm Beach County circuit courts typically require before trial. Litigation is costly, often paid from the estate itself, and outcomes are uncertain. That said, strong settlements come from early, thorough preparation, so treating the dispute seriously from the start matters.

That distinction sounds tidy on paper. In practice, it is where most of the family fights I see in Palm Beach begin—a checking account someone thought was joint but wasn’t, a beneficiary form a parent meant to update and never did, a homestead that one child believes is theirs and another disputes. Understanding what falls into the probate estate, and what falls outside of it, is the first step toward both planning ahead and untangling a contested estate after the fact.

What “Probate” Actually Means in Florida

Probate is the court-supervised process of identifying a deceased person’s assets, paying their valid debts and taxes, and distributing what remains to the people entitled to it—either under a will or, if there is no will, under Florida’s intestacy statutes (Chapter 732, Part I). It is governed by the Florida Probate Code, Chapters 731 through 735, and the Florida Probate Rules. The county circuit court where the decedent lived has jurisdiction; for Palm Beach County residents, that means the probate division of the Fifteenth Judicial Circuit in West Palm Beach.

The key concept is the probate estate. It is not the same thing as everything the person owned. The probate estate consists only of assets that were titled in the decedent’s sole name with no automatic successor. Everything else—and in many well-planned estates that is the majority of the wealth—passes outside the probate process. A person can have a multi-million-dollar net worth and a probate estate of almost nothing, or a modest net worth that nonetheless requires a full formal administration because of how one account was titled.

Assets That Must Go Through Probate

The following assets typically do require probate in Florida because they have no surviving owner and no beneficiary built in:

• Bank and brokerage accounts held in the decedent’s name alone with no payable-on-death (POD) or transfer-on-death (TOD) designation.
• Real property titled solely in the decedent’s name, where no Lady Bird (enhanced life estate) deed, joint ownership, or trust holds title. (Florida homestead is a special case, discussed below.)
• Vehicles, boats, and other titled personal property registered in the decedent’s name alone.
• Tangible personal property—jewelry, furniture, art, collectibles—owned individually.
• A share of property held as tenants in common, because that share belongs to the decedent’s estate rather than passing to the co-owner.
• Business interests, such as a sole proprietorship or membership units in an LLC, when no operating agreement or transfer mechanism directs their disposition.
• Life insurance or retirement accounts payable to “the estate,” or where the named beneficiary has died and no contingent beneficiary exists. The proceeds then fall back into the probate estate.

A useful rule of thumb: if an asset has only the decedent’s name on it and no instruction for what happens next, the court has to supply that instruction. That is what probate does.

Assets That Skip Probate in Florida

Non-probate assets transfer automatically at death, either by operation of law or by contract. They never pass through the court, are not controlled by the will, and are generally available to beneficiaries far faster. The major categories are:

1. Jointly owned property with rights of survivorship. Property held as joint tenants with right of survivorship or, between spouses, as tenancy by the entirety passes directly to the surviving owner. The deceased owner’s interest simply evaporates and the survivor owns the whole.
2. Accounts with POD or TOD designations. A bank account marked payable-on-death, or a brokerage account with a transfer-on-death registration, passes to the named person on presentation of a death certificate.
3. Life insurance and annuities with a living named beneficiary. These are contractual—the insurer pays whoever is named on the policy, regardless of what the will says.
4. Retirement accounts such as IRAs, 401(k)s, and 403(b)s with a valid beneficiary designation.
5. Assets held in a revocable living trust. Property properly titled in the name of a trust is administered by the successor trustee under Chapter 736, the Florida Trust Code, not by the probate court.
6. Real property transferred by a Lady Bird deed. Florida does not have a transfer-on-death deed statute, so the enhanced life estate (Lady Bird) deed is the primary tool for passing real estate outside probate while the owner keeps full control to sell, mortgage, or revoke during life.

One important caution: a beneficiary designation only works if it is current and the named person is alive. The most common probate I open that “shouldn’t” have been necessary involves a retirement account or life insurance policy whose beneficiary form was never updated after a divorce, a death, or a falling-out. The contract still controls—and that frequently produces results the decedent would never have wanted.

Florida Homestead: A Category of Its Own

No asset confuses Florida families more than the home. Constitutional homestead property (Article X, Section 4 of the Florida Constitution) receives special protection from creditors and special descent and devise rules. When a homestead passes to heirs who qualify, it is generally exempt from the claims of the decedent’s creditors and is not counted toward the value thresholds for the simpler forms of probate.

That said, homestead is not automatically a non-probate asset. If title was in the decedent’s sole name, the court usually still needs to enter an order determining that the property qualifies as protected homestead and confirming who inherits it. There are also hard limits on what you can do with a homestead in a will: if the owner is survived by a spouse or minor child, Florida law restricts how the homestead can be devised (Fla. Stat. 732.4015 and 732.401). A will that tries to leave the house to the “wrong” person can be partly overridden by these protections—a frequent flashpoint in blended-family disputes.

The Different Levels of Florida Probate

Not every probate is the same size of undertaking. Florida offers a streamlined path for smaller estates, which matters a great deal when families are weighing time and cost.

Summary Administration

Under Fla. Stat. 735.201, an estate may qualify for summary administration if the value of the probate estate (excluding property exempt from creditors, such as homestead) does not exceed the statutory threshold, or if the decedent has been dead for more than two years. The threshold has historically been $75,000. Florida has enacted an increase to $150,000 effective July 1, 2026, so the qualifying amount depends on when the petition is filed—always confirm the current figure with counsel rather than relying on an older article. Summary administration involves no appointed personal representative and is typically faster and less expensive than the alternative.

Formal Administration

Larger estates, or estates where a personal representative is needed to manage assets, sell property, or handle litigation, proceed through formal administration under Chapter 733. The court issues letters of administration empowering the personal representative to act, creditors are formally noticed, and the process generally runs several months to over a year depending on complexity and whether anyone contests the will.

Disposition Without Administration

For very small estates—essentially where the only assets were exempt property or modest amounts consumed by final expenses—Florida allows an informal “disposition without administration,” reimbursing whoever paid for the funeral and last medical bills without opening a case.

Why This Matters in a Will Contest

Here is the point families often miss until it is too late: a will only controls the probate estate. If a parent’s largest accounts had POD beneficiaries or were jointly titled with one child, a sibling who later challenges the will may win the contest and still walk away with little, because the contested will never governed those accounts in the first place.

That reality cuts both ways. Sometimes a non-probate transfer is exactly what a vulnerable elder was pressured into—a sudden change of beneficiary, a new joint owner added to an account weeks before death. Those transfers can be challenged, but not through a standard will contest; they require separate claims for undue influence, lack of capacity, or fraud, often brought as estate or trust litigation. Recognizing which assets are even in play is the threshold question before any dispute strategy makes sense. We discuss the mechanics of these challenges in , and the broader landscape of court proceedings in this overview of . While those resources address New York procedure, the underlying principles of contested administration translate closely to Florida practice.

For Florida-specific guidance, our handles administrations and disputes across the state, and our local team focuses on Palm Beach families navigating these exact questions.

Planning Ahead: Aligning Your Titling With Your Intentions

The cleanest estates I administer are the ones where the titling and beneficiary designations actually match the will and the family’s understanding. The messiest are the ones where they quietly diverged over decades. Three practical steps prevent most of the trouble:

• Inventory how each asset is titled—sole name, joint, trust, POD/TOD—and confirm it reflects your real wishes.
• Review beneficiary designations annually and after every major life event: marriage, divorce, birth, death.
• Decide deliberately whether assets should pass through your will or around it. A revocable trust, Lady Bird deed, or coordinated beneficiary plan can keep most of an estate out of probate—but only if done as a coherent whole, not piecemeal.

If you are facing the loss of a loved one and are unsure what must be probated, or you suspect a deathbed transfer was not what your parent truly intended, the answers start with mapping the assets. You can learn more about the documents that drive these outcomes on our wills page or reach our office through the contact page to discuss your situation.

The Bottom Line

In Florida, probate is reserved for assets the decedent owned alone with no built-in successor. Joint ownership, valid beneficiary designations, trusts, and Lady Bird deeds let assets bypass the court—which is efficient when planned intentionally and dangerous when it happens by accident or under pressure. Whether you are organizing your own estate or questioning how a relative’s assets were distributed, knowing which bucket each asset falls into is the foundation for everything that follows.

Frequently Asked Questions

Does having a will mean my estate avoids probate in Florida?

No. A will does not avoid probate; it directs how the probate court should distribute your sole-name assets. A will only controls the probate estate, so assets that pass by joint ownership, beneficiary designation, or a trust are unaffected by it. To avoid probate, you must use non-probate transfer tools such as a revocable trust, POD/TOD designations, joint titling, or a Lady Bird deed.

Does Florida homestead property go through probate?

Often the court still must determine that the property qualifies as protected homestead and confirm who inherits it, even though homestead is generally exempt from creditors’ claims and excluded from the value thresholds for summary administration. Florida also restricts how homestead can be left in a will when the owner is survived by a spouse or minor child, under Fla. Stat. 732.401 and 732.4015.

What is the value limit for summary administration in Florida?

Under Fla. Stat. 735.201, an estate can qualify for summary administration if the probate estate (excluding creditor-exempt property like homestead) is under the statutory threshold, or if the decedent has been dead more than two years. The threshold has historically been $75,000 and increases to $150,000 effective July 1, 2026, so the qualifying figure depends on the filing date.

Can a non-probate transfer be challenged if I think it was wrongful?

Yes, but not through a standard will contest. Transfers like a last-minute beneficiary change or a new joint owner added to an account must be challenged through separate claims such as undue influence, lack of capacity, or fraud, typically as estate or trust litigation. Identifying which assets passed outside probate is the first step in evaluating such a claim.

How long does probate take in Florida?

Summary administration can sometimes conclude in a few weeks to a couple of months. Formal administration under Chapter 733 generally takes several months to over a year, depending on the estate’s complexity, creditor claims, and whether anyone contests the will or the personal representative’s actions.

After years of guiding Palm Beach families through probate—including more than a few where a will was contested at the worst possible moment—I’ve learned that the formal-versus-summary decision is rarely as simple as the dollar threshold suggests. Let me walk you through how these two paths actually differ, when each one makes sense, and the traps that catch people who assume the cheaper route is always the better one.

What Is Summary Administration in Florida?

Summary administration is the abbreviated probate procedure set out in Chapter 735, Florida Statutes. It exists for small or aged estates where the cost and ceremony of full probate would be wasteful. There is no personal representative. Instead, an interested party (often a surviving spouse or a beneficiary) files a Petition for Summary Administration directly, and the court—if everything checks out—enters an Order of Summary Administration that distributes the assets to the people entitled to them.

An estate qualifies for summary administration when either of these is true:

• The value of the entire estate subject to probate in Florida, less the value of property exempt from creditors, does not exceed $75,000; or
• The decedent has been dead for more than two years, regardless of the estate’s size.

That two-year rule surprises a lot of families. Florida’s nonclaim statute (Section 733.710) bars most creditor claims two years after death, so once that window closes, even a large estate can sometimes pass through summary administration. I’ve handled cases where a long-forgotten parcel of real estate surfaced years after a parent’s death and summary administration was the elegant, inexpensive answer.

What Summary Administration Does Not Do

Here is the part people miss. Because there is no personal representative in a summary administration, there is no one with authority to manage ongoing estate business—no one to sell stock, run a business, prosecute a lawsuit, or negotiate with creditors over time. The order distributes assets, and that’s largely it. If the estate has loose ends that need active management, summary administration’s simplicity becomes a liability rather than a feature.

What Is Formal Administration in Florida?

Formal administration is the standard, supervised probate proceeding under Chapter 733, Florida Statutes. The court issues Letters of Administration appointing a personal representative—the executor named in the will, or, if there is no valid will, the person prioritized under Section 733.301. That personal representative becomes the legal fiduciary of the estate, with authority and corresponding duties.

In a formal administration, the personal representative typically:

1. Marshals and inventories the decedent’s assets and files the inventory with the court;
2. Publishes a Notice to Creditors and serves known creditors directly, opening the claims period (generally three months from first publication, or 30 days from direct service);
3. Pays valid debts, taxes, and the costs of administration in the statutory order of priority;
4. Defends the estate against improper claims and any will challenge;
5. Distributes the remaining assets to the beneficiaries and files a final accounting before discharge.

Florida requires that the personal representative in a formal administration be represented by a licensed attorney in almost every case (a narrow exception exists when the personal representative is the sole interested person). This isn’t bureaucratic gatekeeping—it reflects how much can go wrong when a fiduciary acts without counsel.

Formal vs. Summary Administration: The Core Differences

Strip away the jargon and the contrast comes down to a handful of practical dimensions.

Asset Threshold and Eligibility

Summary administration is gated by the $75,000 non-exempt cap or the two-year rule. Formal administration has no upper or lower limit—it’s the default for any estate that doesn’t qualify for, or shouldn’t use, the summary route. A $2 million estate goes formal. A $40,000 estate with a recently deceased owner can usually go summary.

Personal Representative

Formal administration appoints one and gives them real authority. Summary administration appoints no one. If a decedent owned a rental property with tenants, an operating business, or pending litigation, the absence of an empowered fiduciary in summary administration is often decisive—you need someone with Letters to actually do things.

Creditor Protection

This is the most underappreciated difference. In a formal administration, publishing notice to creditors triggers a short, defined window (three months) after which untimely claims are barred. That gives beneficiaries clean, marketable title and finality. Summary administration offers far weaker creditor cutoff—recipients of the assets can remain personally liable to creditors, up to the value of what they received, for the full two-year nonclaim period. For an estate within the two-year window, that lingering exposure is a real risk.

Timeline and Cost

Summary administration can sometimes resolve in a matter of weeks to a couple of months and costs significantly less in attorney’s fees and court involvement. Formal administration typically runs six months to a year for an uncontested estate—longer if there’s a dispute—and carries higher fees because of the ongoing fiduciary work and the mandatory creditor period.

When a Will Contest Changes the Calculation

Our practice focuses on families staring down will contests and inheritance disputes, so I’ll be blunt about something the threshold charts never mention: if there is any meaningful disagreement among heirs, summary administration is usually the wrong tool, even for a small estate.

Summary administration assumes consensus. The petition is supposed to be joined by, or served on, all beneficiaries, and it moves fast and quietly. When someone wants to challenge the validity of a will—alleging undue influence, lack of capacity, or improper execution—there is no appointed fiduciary, no formal inventory, and limited procedural machinery to litigate the question. Disputes almost always belong in formal administration, where the court supervises the process, a personal representative is accountable, discovery is available, and the will’s validity can be adjudicated properly.

The mechanics of challenging a will share a great deal across jurisdictions. If you want to understand the anatomy of a will challenge generally, our colleagues’ overview of lays out the grounds and the procedural steps clearly, and much of the underlying logic—undue influence, capacity, fraud—applies in Florida too. For a broader picture of how supervised estate administration works when a personal representative is involved, this explanation of is a useful companion read.

A Decision Framework: Which Path Should You Choose?

When a Palm Beach family sits across from me, I run through roughly this checklist before recommending a route:

• Is the non-exempt estate $75,000 or less, or has it been more than two years since death? If no to both, you’re in formal administration by default.
• Does the estate need active management—a business to wind down, property to sell, a lawsuit to pursue? If yes, lean formal so a personal representative has authority.
• Are there unresolved or unknown creditors? If yes, formal administration’s three-month claim cutoff buys finality that summary administration can’t.
• Is everyone in agreement? If there’s a whiff of a will contest or family conflict, choose formal administration.
• Is speed and low cost the dominant concern, with a small, clean, consensual estate? Then summary administration may be exactly right.

There’s also a third, even simpler option worth mentioning: disposition without administration under Section 735.301, for very small estates consisting only of exempt personal property and final-expense reimbursements. It’s rare, but for the smallest estates it can avoid probate entirely.

Common Mistakes Families Make

The recurring errors I see are predictable and avoidable:

• Choosing summary administration to save money, then discovering an asset that needs a personal representative. Now you’re converting to formal administration midstream—slower and costlier than if you’d started there.
• Miscounting the threshold by including exempt property. The homestead and certain statutory exemptions don’t count toward the $75,000 cap. Get the math wrong and your petition gets bounced.
• Treating the two-year rule as a free pass. Even past the nonclaim period, title and tax issues can complicate things; don’t assume “old estate” automatically means “easy estate.”
• Filing summary administration when a sibling is quietly preparing to contest the will. By the time the dispute surfaces, you may have lost procedural ground.

How a Palm Beach Probate Attorney Helps

The genuine value of counsel here isn’t filling out forms—it’s the judgment call. An experienced attorney prices out both paths, stress-tests the estate for hidden complications, and reads the family dynamics realistically before anyone commits to a procedure. If a contest is brewing, we make sure you’re in the proceeding that actually lets you fight and win.

If you’re weighing your options after a loss in Palm Beach, learn more about our Florida probate services, review how we handle wills and will disputes, or reach out for a consultation. You can also explore our firm’s dedicated for additional resources.

Probate is stressful enough without choosing the wrong door. Pick the path that fits the estate—and the family—in front of you.

Frequently Asked Questions

What is the asset limit for summary administration in Florida?

Summary administration is available when the value of the estate subject to probate, minus property exempt from creditors, does not exceed $75,000. Alternatively, an estate of any size may qualify if the decedent has been dead for more than two years, because Florida’s two-year nonclaim statute (Section 733.710) bars most creditor claims by then.

Is a personal representative appointed in summary administration?

No. Summary administration appoints no personal representative. The court enters an Order of Summary Administration that distributes assets directly to those entitled to them. If the estate needs active management, such as selling property, running a business, or pursuing litigation, formal administration is usually required because only it grants a fiduciary the authority to act.

Which is faster, formal or summary administration?

Summary administration is much faster, often resolving in a few weeks to a couple of months, and costs less. Formal administration typically takes six months to a year for an uncontested estate, largely because of the mandatory creditor claim period and ongoing fiduciary duties, and longer if the will is contested.

Can I use summary administration if a will is being contested?

It is generally a poor choice. Summary administration assumes everyone agrees and offers little procedural machinery to litigate a will’s validity. Will contests alleging undue influence, lack of capacity, or improper execution belong in formal administration, where a personal representative is accountable, the court supervises, and discovery is available.

Does summary administration protect heirs from the decedent's creditors?

Less than formal administration does. Formal administration’s published Notice to Creditors triggers a short three-month claim window, after which untimely claims are barred, giving beneficiaries clean title. In summary administration, recipients can remain personally liable to creditors up to the value of what they received for the full two-year nonclaim period.

That last point is the one I find myself repeating most often to grieving families in Palm Beach. A daughter calls, panicked, because a credit card company told her she’s “responsible” for her late father’s balance. She isn’t. Understanding how Florida law actually sequences debts and taxes against an estate can save a family thousands of dollars and a great deal of needless fear. Below is how it really works.

The Estate Pays the Debts, Not the Heirs

When someone dies in Florida, their probate estate becomes the legal “pocketbook” that answers for their obligations. The personal representative (Florida’s term for what other states call an executor or administrator) gathers the assets, pays the valid debts and taxes, and only then distributes what’s left under the will or under the intestacy statutes if there was no will.

A few categories of debt do survive into the hands of survivors, but the reasons are specific and limited:

• Jointly held debt. If a spouse or child co-signed a loan or was a joint account holder, that person remains liable as a co-borrower, not as an heir.
• Secured debt on inherited property. A mortgage stays with the house. A beneficiary who wants to keep the home generally has to keep paying the loan or refinance it.
• Certain debts a survivor guaranteed by separate written agreement.

Outside of those situations, a creditor’s only recourse is the estate. When the estate runs dry, most unsecured debts simply go unpaid. Beneficiaries are not on the hook to make up the difference out of their own funds.

How Creditor Claims Work Under the Florida Probate Code

The mechanics of paying debts are governed by Part VII of Chapter 733, Florida Statutes. The process is deadline-driven, and missing those deadlines has real consequences for everyone involved.

Notice to Creditors and the Claims Window

Once a formal administration is opened, the personal representative must publish a Notice to Creditors in a local newspaper and serve that notice directly on any creditor who is “reasonably ascertainable.” This is a constitutional requirement; the U.S. Supreme Court’s decision in Tulsa Professional Collection Services v. Pope established that known creditors are entitled to actual notice, not just a buried newspaper ad.

Under Florida Statutes section 733.702, a creditor generally must file its claim by the later of:

1. Three months after the first publication of the Notice to Creditors, or
2. Thirty days after the creditor is served with a copy of the notice.

A creditor who blows that deadline is, in most cases, barred from collecting. That is a powerful tool, and it is one reason opening probate promptly can actually protect an estate rather than expose it.

The Two-Year Absolute Bar

Florida also imposes an outer limit. Section 733.710 bars all claims against an estate two years after the date of death, whether or not probate was ever opened and whether or not the creditor received notice. This nonclaim statute is one of the most consumer-friendly provisions in the country. It is why some Florida families who discover a small estate years later find that the old debts have quietly evaporated.

Objecting to a Claim

Filing a claim does not make it valid. If the personal representative believes a claim is inflated, duplicative, or simply wrong, they can file a written objection. The burden then shifts to the creditor, who has 30 days to file an independent lawsuit to enforce the claim or lose it. In contested estates, this is frequently where disputes erupt, particularly when a family member asserts a “claim” for caregiving, loans, or services rendered to the decedent. Those situations can blur into the same territory as a contested probate proceeding, and they deserve careful handling.

The Order Debts Get Paid: Florida’s Priority Ladder

When an estate cannot pay everyone in full, Florida does not let creditors fight it out first-come, first-served. Section 733.707 sets a strict order of payment. Higher classes are paid in full before lower classes receive anything; if funds run out within a class, that class shares proportionally.

1. Class 1: Costs and expenses of administration, plus reasonable attorney’s fees.
2. Class 2: Reasonable funeral and burial expenses, up to $6,000.
3. Class 3: Debts and taxes with federal preference, including federal income and estate taxes.
4. Class 4: Reasonable and necessary medical and hospital expenses of the last 60 days of the final illness.
5. Class 5: Family allowance.
6. Class 6: Arrearages from court-ordered child support.
7. Class 7: Debts acquired after death for continuing the decedent’s business, to the extent permitted.
8. Class 8: All other claims, including ordinary unsecured debts like credit cards.

Notice where credit card companies land: dead last. That ordering reflects a deliberate policy choice. Florida wants to make sure the estate gets administered, the family gets buried with dignity, the government gets its taxes, and immediate survivors get some support before commercial lenders see a dime.

What About Taxes?

Taxes deserve their own discussion, because this is where misinformation runs especially thick.

No Florida Estate or Inheritance Tax

Florida abolished its estate tax effective for deaths after 2004, when the federal credit it was tied to disappeared. The state constitution actually prohibits a separate inheritance tax. So a beneficiary receiving a bequest from a Florida estate pays no Florida tax on the inheritance itself. This is one of the genuine advantages of dying domiciled in Florida, and it is a major reason so many retirees establish residency here.

Federal Estate Tax: Real but Rare

The federal estate tax still exists, but it reaches only the wealthiest estates. For 2024, the federal exemption is $13.61 million per individual, and a surviving spouse can often use the deceased spouse’s unused exemption through “portability.” The overwhelming majority of estates fall far below that threshold and owe nothing. When an estate does cross the line, the federal return (Form 706) is generally due nine months after death, with a possible six-month extension.

The Decedent’s Final Income Tax

The tax most estates actually face is the decedent’s final Form 1040, covering income earned in the year of death up to the date of death. If the estate continues to earn income during administration, such as interest, dividends, or rent, the personal representative may also need to file a fiduciary income tax return (Form 1041) for the estate itself. These are routine filings, but they are the personal representative’s legal responsibility, and signing off on a distribution before taxes are squared away can create personal exposure.

Homestead, Exempt Property, and the Assets Creditors Can’t Touch

One of the most important and most misunderstood features of Florida probate is that not every asset is available to pay debts. Florida’s constitutional homestead protection (Article X, Section 4) shields the decedent’s primary residence from most creditors, both during life and after death, when it passes to a surviving spouse or heirs. A creditor with an ordinary claim generally cannot force the sale of protected homestead to satisfy the debt.

Florida also recognizes exempt property and a family allowance under sections 732.402 and 732.403, which set aside certain household furnishings, vehicles, and a support cushion for the surviving spouse and minor children, again beyond the reach of general creditors. Assets that pass outside probate, such as life insurance with a named beneficiary, properly titled jointly held property, and payable-on-death accounts, also typically bypass the estate’s creditor claims entirely.

The practical upshot: a family can look at an estate that seems “underwater” on paper and still preserve the home and meaningful support, because the most valuable asset never enters the creditor pool in the first place. Sorting out what is exempt and what is reachable is exactly the kind of analysis worth doing early, ideally before you start writing checks.

When Debt Disputes Turn Into Estate Litigation

Most estates settle their debts without drama. But debts and taxes are frequently the flashpoint in contested estates, especially in blended families and high-value Palm Beach estates. A few recurring scenarios:

• An heir claims the decedent “owed” them money for years of caregiving or a long-ago loan, and files a creditor claim instead of taking it through the will.
• A personal representative pays favored relatives ahead of legitimate creditors, scrambling the statutory priority and inviting a surcharge action.
• Beneficiaries suspect the estate is being drained by inflated administration expenses or unnecessary legal fees.

These conflicts often run alongside, or directly into, a will contest. When the validity of the will itself is in question, the stakes around who pays what only grow. Families navigating that terrain benefit from counsel experienced in , and from understanding how the broader ties debts, taxes, and distributions together. The principles translate across states, and the same firm handles Florida matters through its .

What a Personal Representative Should Do First

If you have just been appointed, the sequence matters. Pay claims out of order and you may end up personally liable. A sound early checklist:

1. Inventory every asset, and flag which are exempt or pass outside probate.
2. Publish the Notice to Creditors and serve known creditors directly.
3. Do not rush to pay any creditor before the claims window closes; you may need to apply the priority ladder.
4. Identify and file the decedent’s final income tax return, and determine whether Form 706 or Form 1041 is needed.
5. Object in writing to any claim that looks questionable.
6. Distribute to beneficiaries only after debts and taxes are resolved or properly reserved.

None of this needs to be navigated alone. If you are sorting out an estate or facing a dispute over what is owed, our team can walk you through the deadlines and the priority rules before a mistake becomes expensive. Learn more about how a will is administered on our wills and probate page, or reach out through our contact page for a confidential conversation about your situation.

Frequently Asked Questions

Are heirs personally responsible for a deceased person's debts in Florida?

Generally no. A decedent’s debts are paid from the probate estate, not from the heirs’ own money. Exceptions exist for co-signed or jointly held debt and for secured debt like a mortgage on property an heir chooses to keep. Once the estate’s assets are exhausted, most unsecured debts go unpaid and beneficiaries owe nothing further.

How long do creditors have to make a claim against a Florida estate?

Under Florida Statutes 733.702, a creditor must usually file within three months of the first published Notice to Creditors, or within 30 days of being served directly, whichever is later. Separately, section 733.710 bars all claims two years after the date of death regardless of whether probate was opened.

Does Florida have an estate tax or inheritance tax?

No. Florida has neither a state estate tax nor an inheritance tax, and the state constitution prohibits an inheritance tax. Beneficiaries pay no Florida tax on what they inherit. Only the federal estate tax may apply, and only to estates exceeding the federal exemption ($13.61 million per person in 2024).

In what order are debts paid when a Florida estate can't pay everyone?

Florida Statutes 733.707 sets a priority ladder: administration costs and attorney’s fees first, then funeral expenses up to $6,000, then federal taxes, last-illness medical bills, family allowance, child support arrears, post-death business debts, and finally ordinary unsecured debts like credit cards. Higher classes are paid in full before lower ones receive anything.

Can creditors force the sale of a Florida home to pay estate debts?

Usually not. Florida’s constitutional homestead protection shields the decedent’s primary residence from most creditors when it passes to a surviving spouse or heirs. Exempt property and a family allowance are also set aside for survivors beyond the reach of general creditors, which is why a seemingly insolvent estate can still preserve the home.

I have spent years walking families through the Palm Beach County probate court, and I can tell you that almost every delay traces back to a handful of recurring problems. The good news is that most of them are predictable, and many are preventable. Below is an honest look at why Florida probate slows down, what the law actually requires, and where a contested estate diverges from a quiet one.

The Florida Probate Timeline in Plain Terms

Florida recognizes two main paths. Summary administration is available under Florida Statutes § 735.201 when the estate (excluding exempt and homestead property) is worth $75,000 or less, or when the decedent has been dead for more than two years. Formal administration under Chapter 733 is the full process, with a court-appointed personal representative, and it governs most estates of any real size.

A clean formal administration moves through predictable stages: petition for administration, appointment of the personal representative and issuance of letters of administration, notice to creditors, the creditor claim period, asset gathering and accounting, payment of debts and taxes, and finally distribution and discharge. When each stage proceeds on schedule, the estate closes in well under a year. Delay almost always means one stage has stalled. Understanding which one is the first step to fixing it.

Will Contests and Family Disputes: The Number One Cause of Delay

Nothing freezes an estate faster than a fight over the will. When an interested party challenges the validity of the document, the probate court cannot distribute assets until the dispute is resolved, and litigation operates on its own clock. A contested matter that goes to discovery, depositions, and potentially trial can add a year or two to the process. This is the territory our firm lives in, and it is where families most need a steady hand.

Florida law allows a will to be challenged on several specific grounds:

• Lack of testamentary capacity — the testator did not understand the nature of the act, the property involved, or the natural objects of their bounty when they signed.
• Undue influence — someone in a confidential relationship exerted pressure that overpowered the testator’s free will. Florida courts often look at the factors from In re Estate of Carpenter, such as whether the influencer was present at the signing or procured the witnesses.
• Improper execution — the will failed to meet the formalities of Florida Statutes § 732.502, which requires the testator’s signature at the end and two witnesses who sign in the presence of the testator and each other.
• Fraud, duress, or mistake — the testator was deceived about what they were signing or coerced into signing it.

One detail catches many families off guard. Under Florida Statutes § 733.212, an interested person generally has only three months from being served with the Notice of Administration to file objections to the validity of the will, the qualifications of the personal representative, or the venue. Miss that window and the right to object is usually lost. That short fuse is exactly why disputes need attention early, not after months of stewing. The challenges that arise during a contested estate are not unique to Florida, and the broader pattern is worth understanding; this overview of covers the same dynamics that play out in Palm Beach courtrooms.

In Terrorem Clauses Do Not Help in Florida

Some out-of-state families assume a “no-contest” clause will scare off challengers. In Florida it will not. Under Florida Statutes § 732.517, a provision penalizing an interested person for contesting the will is unenforceable. That means a beneficiary can challenge a Florida will without forfeiting their inheritance for trying, which removes a deterrent that exists in many other states and makes contests somewhat more common here.

A Missing, Lost, or Defective Will

The original will is the engine of probate, and problems with the document itself create immediate delay. If only a copy can be found, Florida treats the original as presumed destroyed and revoked, and the proponent must overcome that presumption with clear evidence under Florida Statutes § 733.207. That requires testimony and often a contested hearing.

Other document problems include a will that was never updated after a divorce (Florida Statutes § 732.507 automatically voids gifts to a former spouse), a will referencing a trust that was never funded, or handwritten and out-of-state wills that do not satisfy Florida’s execution requirements. Each of these forces the court to pause and sort out what the decedent actually intended.

Creditor Claims and the Notice Period

Even a perfectly cooperative family cannot rush this stage, because it is built into the statute. The personal representative must publish a Notice to Creditors and serve known or reasonably ascertainable creditors directly. Under Florida Statutes § 733.702, creditors then have three months from first publication (or thirty days from being served, whichever is later) to file claims. The estate cannot safely close until that window has run and any claims are resolved.

Disputes over individual claims add more time. If the personal representative objects to a claim, the creditor has a limited period to file an independent lawsuit, and that litigation runs separately from the main administration. Medical bills, credit card balances, and reimbursement claims from Medicaid are frequent flashpoints. A diligent representative who identifies creditors early and serves them promptly keeps this stage on its minimum timeline instead of dragging it out.

An Inactive or Conflicted Personal Representative

The personal representative drives the case, and when that person is slow, overwhelmed, or self-interested, everything backs up. Common breakdowns include:

1. Delayed inventory. Florida Statutes § 733.604 requires filing an inventory of estate assets, generally within sixty days of issuance of letters. A late inventory holds up valuation and accounting.
2. Poor recordkeeping. Without clean records, the final accounting cannot be prepared and beneficiaries are entitled to object.
3. Conflicts of interest. A representative who is also a major beneficiary may drag their feet on selling property or distributing assets.
4. Removal proceedings. When beneficiaries petition to remove a representative for breach of fiduciary duty, the resulting litigation can stall the estate for months.

If the named representative lives out of state, Florida’s qualification rules (Florida Statutes § 733.304) limit who may serve, which can require appointing a different person and restarting that step. Choosing a capable, local, conflict-free representative is one of the most effective ways to keep an estate moving.

Complex or Hard-to-Value Assets

Some delays are nobody’s fault; they are simply a function of what the decedent owned. A closely held business, commercial real estate, mineral rights, an art collection, or cryptocurrency all require appraisal and sometimes liquidation before the estate can close. Real property located in another state forces an ancillary administration in that jurisdiction, a parallel proceeding that runs on its own schedule.

Florida’s homestead protections add their own wrinkle. Determining whether property qualifies as protected homestead under Article X, Section 4 of the Florida Constitution affects creditor exposure and who ultimately takes the property, and that determination sometimes requires a separate court order. None of this is unusual, but each item adds steps. Families with assets in multiple states, including New York, often benefit from coordinated counsel; Morgan Legal’s team handles , which makes multi-state estates far less painful than juggling unconnected lawyers in each jurisdiction.

Tax Issues and Federal Filings

Florida has no state estate tax or inheritance tax, which spares most families a major headache. But larger estates may owe federal estate tax and must file IRS Form 706, and the estate may need an EIN and final income tax returns. A prudent personal representative will often wait for a closing letter or for the limitations period to lapse before making final distributions, because distributing too early can leave the representative personally exposed. That caution is sensible, but it does extend the timeline for high-net-worth estates.

Court Backlogs and Procedural Missteps

The Palm Beach County Circuit Court probate division handles a heavy caseload, and hearing dates are not infinitely available. On top of that, technical errors generate their own delays: an improperly served notice, a defective oath of personal representative, a missing death certificate, or a petition that omits required information all draw a deficiency notice that has to be cured before the case advances. These are the avoidable delays, and they are precisely where experienced counsel earns its keep by getting the filings right the first time.

How to Keep a Florida Probate on Track

You cannot eliminate every delay, but you can avoid most of the self-inflicted ones. A few principles consistently help:

• Locate and secure the original will immediately, and order multiple certified death certificates.
• File the petition promptly and identify creditors early so the three-month notice clock starts running without delay.
• Choose a personal representative who is organized, available, and free of conflicts.
• Address disputes head-on within the three-month objection window rather than letting resentment harden into litigation.
• Get appraisals for unusual assets early instead of at the end.
• Work with a probate attorney who knows the local court’s expectations and filing standards.

If you are anticipating a contest or already in one, do not wait. Our firm focuses on families navigating will contests and estate disputes throughout Palm Beach, and the earlier we are involved, the more leverage you have. You can review our approach to Florida probate, learn more about wills and will validity, or reach out through our contact page for a confidential consultation. For estates with significant Florida real property, Morgan Legal also handles as part of a coordinated, multi-state practice.

Frequently Asked Questions

How long does probate take in Florida?

An uncontested formal administration usually takes six to nine months because the creditor claim period alone runs three months. Summary administration can finish in a few weeks. A contested estate involving a will challenge or removal of the personal representative can take a year or more.

What is the deadline to contest a will in Florida?

Under Florida Statutes § 733.212, an interested person served with the Notice of Administration generally has three months to object to the will’s validity, the personal representative’s qualifications, or venue. Missing that deadline usually waives the right to object.

Can a no-contest clause stop a will challenge in Florida?

No. Florida Statutes § 732.517 makes no-contest (in terrorem) clauses unenforceable, so a beneficiary can challenge a Florida will without automatically forfeiting their inheritance for doing so.

What delays probate the most?

Will contests and family disputes are the biggest cause of delay, followed by a missing or defective will, the mandatory creditor claim period, an inactive personal representative, and hard-to-value or out-of-state assets requiring ancillary administration.

Frequently Asked Questions

How long does probate take in Florida?

An uncontested formal administration usually takes six to nine months because the creditor claim period alone runs three months. Summary administration can finish in a few weeks. A contested estate involving a will challenge or removal of the personal representative can take a year or more.

What is the deadline to contest a will in Florida?

Under Florida Statutes Section 733.212, an interested person served with the Notice of Administration generally has three months to object to the will’s validity, the personal representative’s qualifications, or venue. Missing that deadline usually waives the right to object.

Can a no-contest clause stop a will challenge in Florida?

No. Florida Statutes Section 732.517 makes no-contest (in terrorem) clauses unenforceable, so a beneficiary can challenge a Florida will without automatically forfeiting their inheritance for doing so.

What delays probate the most?

Will contests and family disputes are the biggest cause of delay, followed by a missing or defective will, the mandatory creditor claim period, an inactive personal representative, and hard-to-value or out-of-state assets requiring ancillary administration.

Court Costs: The Fixed Layer

Court costs are the most predictable expense. The Palm Beach County Clerk of the Circuit Court charges a statutory filing fee to open a probate estate, and the amount is set by Florida statute rather than by the size of the estate. There are also smaller charges for certified copies of Letters of Administration, recording documents, and publishing the Notice to Creditors in a local newspaper. These costs are the same whether the estate is modest or substantial, which is why they tend to weigh more heavily on smaller estates.

Attorney Fees: Where the Choices Live

Attorney fees are usually the largest line item, and Florida gives families more flexibility here than many people realize. Section 733.6171 of the Florida Probate Code sets out a “presumptively reasonable” fee schedule tied to the value of the estate. But that schedule is a default, not a mandate. Many Palm Beach attorneys instead offer a flat fee for a straightforward formal administration or bill hourly for a complex one. The comparison matters: a percentage-based fee can be efficient for a simple estate but expensive for a large estate with few moving parts, while a flat fee gives certainty up front. Always ask which arrangement an attorney uses before you sign.

Personal Representative Compensation

The personal representative (Florida’s term for an executor) is entitled to a commission under section 733.617, also calculated as a percentage of the estate. In Palm Beach families, the personal representative is often an adult child or surviving spouse who chooses to waive this commission to keep more value in the estate. Whether to take or waive it is a personal decision, and it is worth weighing against the time and responsibility the role demands.

Summary vs. Formal Administration: The Biggest Cost Lever

The single largest factor in your total bill is which type of administration applies. Florida offers summary administration for estates valued at $75,000 or less (excluding exempt property) or where the person has been deceased more than two years, and formal administration for everything else. Summary administration skips the appointment of a personal representative and much of the ongoing court supervision, so it typically costs a fraction of a formal case. Many Palm Beach estates that hold only a homestead and a bank account qualify for the summary path. Determining eligibility early can save thousands.

What Probate Fees Do Not Include

One reassuring point for Florida families: probate fees never include a state estate or inheritance tax, because Florida has none. Federal estate tax applies only to very large estates. Costs you may encounter outside the core fees include appraisals for real property near the coast, accountant fees if a final income tax return is needed, and bond premiums if the will does not waive bond.

Comparing Your Total Picture

To estimate your exposure, add the fixed court costs, your chosen attorney arrangement, and any personal representative commission, then subtract what you can streamline by qualifying for summary administration or by waiving commissions. Two estates of identical size can pay very different totals depending on these choices.

A note on getting advice: Probate fees in Florida turn on details specific to your family and your assets. Before assuming a number, consult a licensed Florida probate attorney familiar with Palm Beach County practice, who can review your situation and recommend the most cost-effective path.

If you are reading this because a parent died and a sibling has produced a will you have never seen, or because you have been named personal representative and have no idea what that obligates you to do, you are in the right place. Below, I walk through what the probate court actually does in Florida, how it gets involved, and where families most often end up in front of a probate judge fighting over what was left behind.

What the Probate Court Is and Where It Sits in Florida’s System

Florida does not have a separate, standalone “probate court” the way some states have a surrogate’s court or an orphans’ court. Instead, probate is a division of the circuit court. Each of Florida’s twenty judicial circuits assigns certain judges to hear probate, guardianship, trust, and mental-health matters. For residents of Palm Beach, Boca Raton, Wellington, Jupiter, and the surrounding communities, that means the Probate Division of the Fifteenth Judicial Circuit Court, with the Clerk of the Circuit Court & Comptroller handling filings and records.

The court’s authority over estates is set out in the Florida Probate Code, found in Chapters 731 through 735 of the Florida Statutes, and the procedures are spelled out in the Florida Probate Rules. Those rules are not optional. A personal representative who ignores a statutory deadline or skips a required notice can be held personally responsible, and the judge has the power to remove and surcharge a fiduciary who breaches their duties.

The Core Functions of the Probate Court

Strip away the jargon and the probate court does four big things. Each one is a place where a dispute can erupt.

• Validating the will. The court determines whether the document offered is the decedent’s true last will, properly signed and witnessed under Florida Statute 732.502. If it isn’t valid, the estate passes by the rules of intestacy instead.
• Appointing and supervising the personal representative. The court issues “letters of administration” that empower someone to act for the estate, then holds that person to a fiduciary standard for the rest of the case.
• Protecting creditors and beneficiaries. The court enforces the notice-to-creditors process, the claims period, and the priority of payment, while making sure beneficiaries receive what the law entitles them to.
• Resolving disputes. When someone contests the will, accuses the personal representative of self-dealing, or disagrees over how property is being valued or distributed, the probate judge decides.

How an Estate Actually Reaches the Court

Probate begins when an interested person files a petition for administration with the clerk, along with the original will (if there is one) and a certified death certificate. The clerk opens a case, assigns a judge, and the machinery starts. In Florida there are two main tracks:

1. Formal administration — the full process, used for most estates, involving a court-appointed personal representative, formal notice, a creditor period, and a final accounting.
2. Summary administration — a streamlined option under Florida Statute 735.201 available when the estate’s non-exempt assets are worth $75,000 or less, or when the decedent has been dead for more than two years.

There is also a non-court shortcut called “disposition without administration” for very small estates that consist only of exempt property and final expenses. But the moment family members start disagreeing, the simplified tracks tend to fall away and you are squarely in front of a judge.

What the Personal Representative Owes the Estate

The personal representative (Florida’s term for what other states call an executor or administrator) is the court’s appointed steward. Once letters of administration issue, that person must inventory the assets, value them, give notice to creditors by publication and direct service, pay valid claims in the order the statute requires, file tax returns, and ultimately distribute what remains to the rightful beneficiaries.

Crucially, the personal representative is a fiduciary. That means they owe a duty of loyalty and care to the beneficiaries and cannot put their own interests first. When a personal representative pays themselves an inflated fee, sells estate property to a friend below market, drags out the administration for years, or simply refuses to communicate, the probate court is where beneficiaries go for relief. The judge can compel an accounting, freeze distributions, remove the representative, and order them to repay losses they caused.

Will Contests and Estate Disputes in the Probate Court

This is where most of the families I represent in Palm Beach end up. A will contest is a formal legal challenge to the validity of a will, raised inside the probate case. Florida law recognizes several grounds, and each requires real evidence — suspicion alone will not carry the day.

The Most Common Grounds for Challenging a Will

• Lack of testamentary capacity. The person did not understand the nature of their property, their family, or the effect of signing the will, often because of dementia or serious illness at the time of execution.
• Undue influence. Someone in a position of trust — a caregiver, a late-in-life spouse, one child among several — overpowered the decedent’s free will and steered the estate to themselves. Florida courts look at factors such as whether that person was present at the signing, recommended the attorney, and benefited disproportionately.
• Improper execution. The will was not signed and witnessed exactly as Florida Statute 732.502 requires. Holographic (unwitnessed handwritten) wills are generally not valid in Florida, a fact that surprises many families.
• Fraud or forgery. The signature is not genuine, or the decedent was deceived about what they were signing.
• Revocation. A later will or a physical act of destruction revoked the document being offered.

A word of caution on timing: Florida imposes strict deadlines. Once a beneficiary or interested party is served with formal notice of the will’s admission, the clock to object can run as short as three months under Florida Statute 733.212. Wait too long and a perfectly meritorious challenge can be barred forever. If you suspect a problem, you cannot afford to “see how things play out.”

Disputes That Don’t Involve the Will Itself

Not every fight is a will contest. The probate court also handles disagreements over the valuation of a family business or real estate, claims that the decedent promised property that the will does not reflect, objections to the personal representative’s accounting, surviving-spouse elective share claims, homestead determinations, and competing creditor claims. These disputes can be every bit as bitter as a will contest, and they all run through the same judge. For a fuller picture of where things tend to go wrong, this overview of the maps closely onto what we see in Florida courtrooms.

How the Probate Judge Manages a Contested Case

When a dispute is filed, the probate case starts to look like ordinary civil litigation grafted onto the estate. The parties exchange discovery, take depositions, hire experts (geriatric physicians for capacity, forensic document examiners for forgery, accountants for valuation), and attend mediation, which many Florida judges require before trial. If mediation fails, the judge holds an evidentiary hearing or bench trial and decides the matter — there is no jury in Florida probate proceedings.

Two practical realities are worth keeping in mind. First, the estate’s assets are frozen in practice while a serious dispute is pending; nobody gets their inheritance until the fight is resolved. Second, attorney’s fees in these cases can, in certain circumstances, be paid from the estate — which is a double-edged sword, because aggressive litigation can shrink the very pot everyone is fighting over.

When You Should Bring a Probate Attorney Into the Picture

You should talk to a Florida probate attorney early in any of these situations: you have been named personal representative; you have been served with notice that a will is being admitted and something feels off; a caregiver or one relative seems to have taken control of an elderly parent’s finances; or you are a beneficiary who cannot get straight answers about the estate. The deadlines are unforgiving and the procedural traps are real.

Our firm handles probate administration and contested estate matters for families across Palm Beach and South Florida — you can learn more on our Florida probate page, and if you are still putting your own affairs in order, our wills overview explains how to build a document that holds up. For Florida-specific estate administration, Morgan Legal’s offers an additional resource, and families with ties to New York can review the firm’s guidance on . When you are ready to talk through your situation, reach out through our contact page.

Frequently Asked Questions

Is there a dedicated probate court in Florida?

Not as a separate courthouse. Probate in Florida is a division of the circuit court. In Palm Beach County, estate matters are heard in the Probate Division of the Fifteenth Judicial Circuit, with filings handled through the Clerk of the Circuit Court & Comptroller.

How long do I have to contest a will in Florida?

It depends on when and how you were notified. If you are served with formal notice that a will has been admitted to probate, you generally have just three months to file an objection under Florida Statute 733.212. Because the window can be that short, you should consult an attorney as soon as you suspect a problem.

Does every estate have to go through the Florida probate court?

No. Assets with named beneficiaries or joint owners — life insurance, retirement accounts, properly funded living trusts, and jointly titled property — typically pass outside probate. Small estates may qualify for summary administration or even disposition without administration. But assets titled solely in the decedent’s name usually require a probate proceeding.

What happens if the personal representative mishandles the estate?

The probate court supervises personal representatives and can compel an accounting, suspend or remove them, and order them to repay losses caused by a breach of their fiduciary duty. Beneficiaries who suspect self-dealing or neglect can petition the court for relief.

Are jury trials available in Florida probate disputes?

No. Florida probate matters, including will contests, are decided by the probate judge in a bench trial rather than by a jury. The case is litigated much like other civil matters, but the judge is the finder of fact.

Frequently Asked Questions

Is there a dedicated probate court in Florida?

Not as a separate courthouse. Probate in Florida is a division of the circuit court. In Palm Beach County, estate matters are heard in the Probate Division of the Fifteenth Judicial Circuit, with filings handled through the Clerk of the Circuit Court & Comptroller.

How long do I have to contest a will in Florida?

It depends on when and how you were notified. If you are served with formal notice that a will has been admitted to probate, you generally have just three months to file an objection under Florida Statute 733.212. Because the window can be that short, you should consult an attorney as soon as you suspect a problem.

Does every estate have to go through the Florida probate court?

No. Assets with named beneficiaries or joint owners — life insurance, retirement accounts, properly funded living trusts, and jointly titled property — typically pass outside probate. Small estates may qualify for summary administration or even disposition without administration. But assets titled solely in the decedent’s name usually require a probate proceeding.

What happens if the personal representative mishandles the estate?

The probate court supervises personal representatives and can compel an accounting, suspend or remove them, and order them to repay losses caused by a breach of their fiduciary duty. Beneficiaries who suspect self-dealing or neglect can petition the court for relief.

Are jury trials available in Florida probate disputes?

No. Florida probate matters, including will contests, are decided by the probate judge in a bench trial rather than by a jury. The case is litigated much like other civil matters, but the judge is the finder of fact.

In Florida, homestead property generally passes outside the ordinary probate process and is shielded from most of the decedent’s creditors, but only if it descends to a qualifying heir as defined by the state constitution and statutes. Because the Florida Constitution restricts how a homestead can be devised when the owner leaves a surviving spouse or minor child, a will that ignores those limits is partially void as to the home. That single rule is the reason homestead questions sit at the center of so many Palm Beach will contests and family disputes.

What “homestead” actually means in Florida probate

The word “homestead” gets used loosely, so families are often surprised to learn it carries three distinct legal meanings in Florida, each with its own rules. Understanding which one applies to a given problem is half the battle.

• The tax exemption. This is the property-tax break and the Save Our Homes assessment cap under Article VII of the Florida Constitution. It reduces what you pay the county, and it does not, by itself, control who inherits the house.
• The creditor protection. Article X, Section 4 of the Florida Constitution shields the homestead from forced sale by most creditors during life and, importantly, after death when the property passes to qualifying heirs.
• The devise restriction. Also rooted in Article X, Section 4, this limits how an owner can leave the home in a will when there is a surviving spouse or a minor child.

In a probate or will-contest setting, it is usually the creditor protection and the devise restriction that drive the fight. The tax exemption matters for planning, but it rarely decides who walks away with the house.

Why homestead usually skips the probate estate

Protected homestead is treated as a special category of asset. When it passes to heirs who qualify for the constitutional protection, it is generally not considered a probate asset available to pay the decedent’s general creditors. That is enormously valuable: a surviving spouse or child can inherit a Palm Beach home free of the deceased owner’s credit card debt, medical bills, and similar claims.

The protection is not automatic paperwork, though. Title to homestead vests in the heirs at the moment of death, but a court order is often needed to confirm the property’s homestead status and to clear title for sale or refinancing. In most Palm Beach County estates, the personal representative or an interested heir files a Petition to Determine Homestead Status of Real Property, and the court enters an order that title companies will rely on. Skipping that step is a common reason a sale falls apart at closing.

The constitutional limits on devising your homestead

This is where good intentions collide with the constitution. An owner cannot freely leave the homestead to whomever they choose if, at death, they are survived by a spouse or a minor child. Florida Statutes section 732.4015 codifies the restriction, and section 732.401 fills in what happens when an owner tries anyway.

If there is a surviving spouse and no minor children

The owner may devise the homestead only to the surviving spouse. A will leaving the home to someone else (an adult child, a sibling, a friend) is invalid as to the homestead. Under section 732.401, the surviving spouse then takes a life estate in the property, with a vested remainder to the decedent’s descendants. Alternatively, the spouse may elect, within six months of the owner’s death, to take an undivided one-half interest as a tenant in common instead of the life estate. That election deadline is unforgiving and is a frequent source of malpractice and regret when missed.

If there is a minor child

The homestead cannot be devised at all. It passes by the constitutional rules regardless of what the will says, generally giving the surviving spouse a life estate (or the elective one-half interest) with the remainder to the descendants. Florida is protective of minor children here, and no will provision overrides it.

When the home can be freely devised

If there is no surviving spouse and no minor child, the devise restriction evaporates. The owner may leave the homestead to anyone. Likewise, if the only “spouse” issue is resolved by a valid waiver, the analysis changes. A spouse can waive homestead rights through a properly executed prenuptial or postnuptial agreement, or a separate waiver, under Florida Statutes section 732.702. Those waivers are heavily litigated, and courts scrutinize whether the spouse had fair disclosure and signed voluntarily.

How homestead fuels will contests in Palm Beach families

For most South Florida families, the home is the single largest asset in the estate. That alone raises the temperature. Add the layered homestead rules and you get predictable flashpoints. The disputes we see most often in Palm Beach County include the following.

1. The invalid devise. A surviving spouse is told the house was left to the decedent’s children from a prior marriage. Because the devise violates section 732.4015, the spouse asserts a life estate or the one-half election, and the children push back. Blended families produce this fight constantly.
2. The disputed marriage or waiver. One side argues a prenuptial agreement waived homestead rights; the other attacks the waiver for lack of disclosure or coercion. The home’s entire chain of title can hinge on whether that document holds up.
3. The life-estate versus election standoff. A surviving spouse with a life estate is responsible for taxes, insurance, and ordinary maintenance, while the remainder beneficiaries hold the future interest. Friction over who pays for a new roof or whether the home should simply be sold is routine, and the six-month election window forces an early, high-stakes decision.
4. The undue-influence claim. When an elderly owner amends a will or deed to redirect the homestead shortly before death, excluded heirs frequently allege undue influence or lack of capacity. These claims sit at the heart of the will contests this firm handles.

Creditor protection survives death, with limits

The homestead’s protection from creditors carries through to qualifying heirs, which is why a surviving spouse or descendant can keep the home even when the estate is otherwise insolvent. But there are real boundaries. Obligations secured by the property itself still attach: a mortgage, a recorded home equity line, a properly perfected construction lien, and unpaid property taxes all follow the house. So do certain obligations the constitution carves out. And if the homestead is devised to someone who does not qualify as a protected heir, it can lose its protected character and become reachable by creditors.

Heirs sometimes assume the protection is permanent and unconditional. It is generous, but it is tied to who inherits and to the nature of the debt. A careful homestead analysis early in the administration prevents an unpleasant surprise later.

Practical steps for the personal representative

If you are administering an estate that includes a Florida home, a few moves protect everyone and reduce the odds of litigation:

• Identify, in writing, whether a surviving spouse or minor child exists as of the date of death. This drives the entire analysis.
• File a petition to determine homestead status early, so title is marketable when an heir wants to sell or refinance.
• Calendar the surviving spouse’s six-month election deadline immediately and confirm whether an election will be made.
• Locate and review any prenuptial, postnuptial, or separate waiver before assuming the spouse’s rights are or are not in play.
• Keep homestead property out of the inventory of assets available to general creditors unless a court determines it is not protected.

How Florida compares to other states, and why counsel matters

Florida’s homestead regime is unusually strong. Many states treat the family home like any other probate asset, subject to creditor claims and freely devisable. New York, for example, processes the family residence through its own probate framework rather than a constitutional homestead shield, and the procedural path differs significantly; our affiliated attorneys explain the New York approach in their overview of a and in their breakdown of the . Families with property in more than one state need to understand that the home may follow completely different rules depending on where it sits.

Within Florida, the stakes and the technicality argue for experienced counsel. A misstep on the devise restriction can void part of a will; a missed election deadline can cost a surviving spouse a more favorable share; a skipped homestead determination can blow up a closing. Our team handles these matters across the region, and you can learn more about our broader as well as our local guidance on Florida probate administration and the role of a properly drafted will.

When to call a Palm Beach probate attorney

If the estate you are dealing with includes a home and there is any disagreement about who should receive it, or any surviving spouse, minor child, or contested marital agreement in the picture, the homestead rules are almost certainly in play. The earlier those rules are analyzed, the cheaper and cleaner the outcome. If you are facing a will contest, an invalid devise, or a dispute between a life tenant and remainder beneficiaries, speak with counsel before deadlines pass. You can reach our office through our contact page to discuss your situation.

Frequently Asked Questions

Does homestead property go through probate in Florida?

Homestead generally is not a probate asset for paying the decedent’s general creditors when it passes to qualifying heirs such as a surviving spouse or descendants. However, a court order determining homestead status is usually needed to clear title before the property can be sold or refinanced, so a probate filing is often still involved even though the home itself is protected.

Can I leave my Florida home to anyone I want in my will?

Only if you have no surviving spouse and no minor child at death. Under Florida Statutes sections 732.4015 and 732.401, if you are survived by a spouse you may devise the homestead only to that spouse, and if you are survived by a minor child you cannot devise it at all. A will that violates these limits is invalid as to the homestead, and the property passes under the constitutional rules instead.

What are a surviving spouse's options for the homestead?

When the home cannot be freely devised, the surviving spouse typically receives a life estate in the property with a remainder to the decedent’s descendants. Alternatively, the spouse may elect, within six months of death, to take an undivided one-half interest as a tenant in common. That six-month deadline is strict, so the choice should be evaluated promptly with an attorney.

Are creditors blocked from reaching a Florida homestead after death?

Largely yes, when the home passes to qualifying heirs the Florida Constitution shields it from most creditors. But obligations secured by the property itself, including mortgages, home equity lines, properly perfected liens, and unpaid property taxes, still attach. If the home is left to someone who does not qualify as a protected heir, it can lose its protection and become reachable by creditors.

Why do homestead issues cause so many will contests in Palm Beach?

The home is usually the most valuable asset in the estate, and the homestead rules limit how it can be left, especially in blended families. Disputes commonly arise over invalid devises, contested prenuptial or waiver agreements, conflicts between a life tenant and remainder beneficiaries, and allegations of undue influence when an elderly owner changes a will or deed shortly before death.