Probate in Florida takes months and costs the family money and privacy, but a will does not avoid it, an unfunded trust does not either, and for some estates the sensible answer is to let it happen.
Key Takeaways
- Florida probate is a court proceeding that rarely closes in under five or six months because of the three-month creditor period, and its cost is a sliding percentage of the estate plus the personal representative’s commission and court expenses.
- What avoids probate is how property is titled: a funded revocable trust, beneficiary and pay-on-death designations, survivorship ownership, and the Lady Bird Deed; a will does not, and a trust that was never funded does not either.
- Probate is worth letting happen for a modest estate that fits summary administration, for a single person whose assets pass by deed and designation, or where the family wants creditors cut off or a court to settle a coming dispute.
Avoiding probate has become a goal in itself, promoted mostly by people selling the means to do it. I draft trusts for a living, and I think probate is worth avoiding in many estates. I also think the question deserves a plainer answer than it usually gets: what probate is in Florida, what it costs, what actually avoids it, and when the effort is not worth making.
Probate in Florida is a court proceeding with a calendar of its own
Probate is the court process that transfers property titled in a dead person’s name to the people entitled to it, after the creditors are dealt with. Florida has three versions. Formal administration under chapter 733 is the full proceeding: A personal representative is appointed (the officer other states call an executor), a notice to creditors is published, an inventory is filed, claims are paid or objected to, and the court enters an order of discharge. Summary administration under Fla. Stat. § 735.201 is a shorter proceeding without a personal representative, available when the estate subject to administration in Florida, less exempt property, is $150,000 or less for deaths on or after July 1, 2026, or when the decedent has been dead more than two years. Disposition without administration under § 735.301 is for estates of exempt property and little else, with no real estate.
A formal administration rarely closes in less than five or six months, because creditors have three months after the notice is published to file claims (Fla. Stat. § 733.702), and the claims must be resolved before the estate closes. A year is common. An estate with a house to sell or a tax return to file takes longer. During that time the assets are the personal representative’s to manage, not the family’s to spend. The cost has three parts: the attorney’s fee, which Fla. Stat. § 733.6171 presumes reasonable when computed on a sliding percentage of the estate’s value; the personal representative’s commission under § 733.617, also a percentage, which a family member often waives; and court costs, publication, and the expenses of appraisal and accounting. The file is public.
What avoids probate is title, not paper
Probate applies to property in the decedent’s own name with no surviving co-owner and no named beneficiary. Anything that passes by its own terms stays out. A revocable trust avoids probate for every asset titled in the trustee’s name, which is why the deed, the retitling, and the assignment follow the signing. Beneficiary designations on life insurance, annuities, and retirement accounts pass to the named person. Pay-on-death designations on bank accounts (Fla. Stat. § 655.82) and transfer-on-death registrations on brokerage accounts (chapter 711) do the same. Property owned jointly with right of survivorship, including a married couple’s tenancy by the entirety, passes to the survivor; my article on tenancy by the entirety brokerage accounts explains why “joint” does not always mean what people assume. And Florida real property can pass by an Enhanced Life Estate “Lady Bird” Deed, which keeps full control in the owner for life and passes the property at death to the named remainder beneficiaries.
A protected homestead is a special case. If you are survived by a spouse or a minor child, the Florida Constitution and Fla. Stat. § 732.4015 restrict how it can be left, and under § 733.607 it is not an asset of the probate estate at all. It passes to the heirs or devisees outside the estate, but in practice a petition to determine homestead status is usually filed in the probate so that a title company has an order to rely on. A Lady Bird Deed or a trust can carry the homestead instead, within those restrictions.
Adding a child to the deed is not a plan
A deed adding an adult child as joint owner with survivorship costs almost nothing and avoids probate. I advise against it nearly every time. The deed is a completed gift of half the house, reportable on a gift tax return. You cannot sell or mortgage without the child’s signature. The child’s half is exposed to the child’s creditors, bankruptcy, and divorce. The gifted half keeps your low basis instead of taking a stepped-up basis at your death. With a spouse or a minor child, the deed may violate the homestead devise restrictions. With other children, the one on the deed takes the house outright, with no legal duty to share. A Lady Bird Deed does the probate avoidance without any of this. The whole catalogue is in my article on Florida homestead as asset protection.
A will does not avoid probate, and an unfunded trust does not either
A will is the instruction manual for probate. It tells the court who the personal representative is and who takes what. It does not transfer anything by itself. A trust avoids probate only for what is titled in it. A trust signed and put in a drawer, with the house and the accounts still in the client’s own name, avoids nothing; the pour-over will sends those assets to the trust through probate, which is the proceeding the trust was meant to avoid. A trust that is funded except for one forgotten account produces a probate for that account, with the same notice, the same creditor period, and much of the same expense. This is why I fund trusts with the client rather than handing over a binder with instructions, and why I ask to see the statements.
Sometimes the sensible answer is to let the estate go through probate
A modest estate. If what will be left in your own name after the home passes by deed and the accounts by designation is $150,000 or less, summary administration is a short proceeding, one petition and one order, with the order often entered within weeks of filing and the whole matter usually finished within a few months. A trust for that estate costs more than the probate it would avoid.
A single person with a simple plan. Suppose a widower in Palm Harbor owns his home, an IRA, a brokerage account, and a checking account, and wants it all to go equally to his two children. A Lady Bird Deed to the children, beneficiary designations on the IRA and the accounts, and a short will for whatever is left avoid probate entirely without a trust. The plan has less flexibility than a trust, it does nothing for incapacity (a durable power of attorney does that), and it works poorly if a child dies first or has troubles of their own. For the right person it is enough.
When the family wants the creditors cut off. A probate publishes a notice to creditors, and claims not filed within three months of publication are barred. Without a probate, creditors have two years from death under Fla. Stat. § 733.710, and the trustee of a revocable trust is liable for the settlor’s debts to the extent the probate estate cannot pay them (Fla. Stat. § 736.05053). For a decedent who ran a business or practiced a profession, the family may prefer to open a probate just to publish the notice, even if everything else is in the trust, and the trust document should allow it.
When a fight is coming. If a child is likely to contest the plan, or siblings do not trust one another, a court-supervised proceeding with a personal representative, an inventory, and an accounting can be the cheaper way through. I do not litigate, and if the dispute arrives I will refer it. I can tell you in advance which structure makes it shorter.
Avoiding probate is not avoiding administration
A successor trustee has work to do after a death: the notice of trust, a tax identification number, collecting and valuing the assets, paying expenses and debts, accounting to the beneficiaries, and distributing. Trust administration is faster and more private than probate, but it is not nothing, and a trustee who treats it as nothing creates the disputes a probate would have resolved.
The trade is when the family pays, not whether
A trust-based plan costs more at the outset than a will, requires the funding work, and asks the client to keep it funded as accounts come and go. Probate costs the family later, in the attorney’s fee, the personal representative’s time, the months of waiting, and the public file. There is no version in which nothing is paid. My advice depends on the size of the estate, the kinds of property, the family, and how much the client values privacy and convenience. For many clients the trust is plainly the better bargain. For some it is not, and I say so.
If you would like to know which side of that line your own estate falls on, the first step is the questionnaire, followed by an hour with me in Palm Harbor, or by appointment in Tampa or St. Petersburg.