The non-citizen spouse problem: the marital deduction and QDOT trusts

Most married couples assume that anything they leave to a surviving spouse passes free of federal estate tax under the unlimited marital deduction. That assumption breaks down when the surviving spouse is not a U.S. citizen. Federal law restricts the unlimited marital deduction for property passing to a non-citizen spouse, because the government worries that a non-citizen could leave the country with inherited assets beyond the reach of U.S. estate tax.

The standard solution is a Qualified Domestic Trust, or QDOT. Property passing into a properly structured QDOT can qualify for the marital deduction, deferring estate tax while the surviving spouse is living. A QDOT carries specific requirements, including a U.S. trustee and rules on distributions. For a young Boca Raton couple where one or both spouses hold green cards rather than citizenship, this is not an academic concern. It is a planning step worth discussing with a Florida estate attorney before a will or trust is signed.

Estate tax exposure for non-resident aliens

Immigration status also changes how the federal estate tax reaches your assets. A non-resident alien who is not domiciled in the United States is generally taxed only on U.S.-situated property, such as real estate located in Florida, and receives a far smaller exemption than a citizen or domiciliary. If you own a Boca Raton condo but are not yet domiciled here, your exposure may be very different from your neighbor’s. Because domicile is a fact-specific question that overlaps with your immigration intentions, coordination between your estate plan and your immigration case matters.

Guardianship for children of immigrant parents

One of the most important reasons young families plan at all is to name a guardian for minor children. For immigrant parents, this is doubly important. If both parents travel abroad, face a medical emergency, or encounter an immigration complication, who cares for your children, and under what authority? Florida law lets you nominate a preneed guardian, and a thoughtful plan can name guardians who are lawfully present and able to act without delay. We always encourage parents to think carefully about whether their chosen guardian’s own status allows them to step in smoothly.

Powers of attorney while you travel for visa matters

Immigration cases frequently require travel, sometimes a consular interview abroad or an extended trip to a home country. A durable power of attorney and a designation of health care surrogate ensure that someone you trust can manage finances, sign documents, and make medical decisions if you are unreachable or detained overseas. For families navigating consular processing, having these documents in place before departure is simple insurance against a complicated situation.

Wills, trusts, and Florida homestead

Your immigration status does not change the formalities for a valid Florida will. Under section 732.502, a will must be signed by the testator and two witnesses in each other’s presence. Trusts are governed by Florida’s Chapter 736, the Florida Trust Code, and a revocable trust can help your family avoid probate and keep matters private. Florida’s homestead protections also apply to your primary residence, but homestead carries strict rules on how it may be devised, especially when a spouse or minor children are involved. These provisions interact with QDOT planning in ways that reward careful drafting rather than a one-size-fits-all template.

Why you need both estate and immigration counsel

An estate plan built without regard to your immigration timeline can undercut a pending case, and an immigration strategy that ignores asset and guardianship planning leaves your family exposed. Our firm focuses on Florida estate planning; we do not handle immigration matters. For the immigration side, including family-based immigration petitions that affect who your beneficiaries are and how your household is structured, we routinely recommend the immigration attorneys at Fitenko Law. When a client is working toward U.S. citizenship and naturalization, coordinating the timing of that case with QDOT and marital-deduction planning can meaningfully change the outcome.

If you are a young immigrant family putting down roots in Boca Raton, the right time to plan is now, while your goals and your green-card or naturalization case are still taking shape. We are glad to build the Florida estate plan and work alongside your immigration counsel so both pieces fit together.

The two “small estate” tracks in Florida, and what separates them

Most people who walk into a probate office hoping to avoid a full estate administration are imagining one of these two streamlined paths. They are governed by Chapter 735 of the Florida Statutes, and they are not interchangeable. Knowing which one fits is the first real decision in any small estate.

Formal administration — the standard process under Chapter 733 — involves a court-appointed personal representative, letters of administration, a notice to creditors published for three months, an inventory, and a final accounting. It exists for a reason, and many estates need it. But it is slow and it costs money. Chapter 735 is Florida’s answer for the cases that genuinely don’t require all of that machinery.

Summary administration (§ 735.201)

Summary administration is the more commonly used of the two. Under Florida Statutes § 735.201, an estate qualifies when either of the following is true:

• The value of the entire estate subject to administration in Florida — meaning the probate assets, less the value of property that is exempt from creditors’ claims — does not exceed $75,000; or
• The decedent has been dead for more than two years, regardless of the dollar value of the estate.

That second prong is easy to overlook and frequently the most useful. The two-year rule matters because, under § 733.710, claims against a Florida estate are generally barred two years after death. So if more than two years have passed, the creditor-claim problem that drives much of formal probate has already resolved itself by operation of law, and a large estate can sometimes be cleared through summary administration even though it is worth well over $75,000.

A summary administration is initiated by filing a Petition for Summary Administration, which can be signed by any beneficiary or by a person nominated as personal representative in the will. If everyone entitled to a share doesn’t join the petition, the non-joining parties must be served with formal notice. When the court is satisfied the requirements are met, it enters an Order of Summary Administration that directly distributes the assets to the people entitled to them. There is no personal representative, no letters, no inventory in the usual sense. The order itself is the instrument that moves title — which is exactly why summary administration, unlike its cousin below, can be used for real property.

Disposition of personal property without administration (§ 735.301)

Disposition without administration is the smaller, humbler procedure, and it is far more limited than people assume from the name. Under § 735.301, no administration is required and no formal proceedings need be opened when a decedent leaves only:

1. Personal property that is exempt under § 732.402 (the statutory exempt property — household furnishings up to a set value, two vehicles, certain education savings, and the like);
2. Personal property that is exempt from creditors’ claims under the Florida Constitution; and
3. Non-exempt personal property whose value does not exceed the sum of (a) preferred funeral expenses and (b) the reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

In plain terms: this remedy exists for the situation where someone dies with a little money in a bank account, owed a final hospital or funeral bill roughly equal to that money, and nothing else of consequence. An interested party — often the person who paid the funeral — applies informally, by affidavit or letter, and asks the court to authorize release of the funds. Many Florida clerks, including the Fifteenth Judicial Circuit serving Palm Beach County and Boca Raton, publish a standardized form for exactly this. There is no attorney requirement and frequently no hearing. When it fits, it is genuinely the cheapest and fastest exit Florida probate offers.

The catch is in the name: personal property without administration. It cannot pass real estate. Not a homestead, not a condo, not a rental property, not a vacant lot. The moment land enters the picture, § 735.301 is off the table.

Why real property changes the analysis in a Boca Raton estate

This is where so many South Florida estates diverge from the simple picture above. The typical Boca Raton decedent did not leave only a checking account. They left a single-family home east of Federal, or a condo in a 55-and-over community, or a unit they rented out seasonally. Real property dominates the estate’s value, and real property is the variable that decides which procedure — if any small-estate procedure at all — is actually available.

Disposition without administration is immediately disqualified

If the estate includes any Florida real property that must pass through probate, § 735.301 is simply unavailable. The statute is confined to personal property. So for the large share of Boca estates anchored by a residence, the only short-form option is summary administration.

Summary administration can clear a homestead — but value is measured carefully

Here is the part that trips people up, and where it pays to read the statute precisely. The $75,000 ceiling for summary administration is measured on the estate subject to administration, less exempt property. Florida homestead, when it descends to heirs who qualify for the constitutional homestead protection, is generally exempt from the claims of the decedent’s creditors. That means a properly protected homestead’s value often does not count against the $75,000 cap.

The practical consequence is significant. A widow whose late husband left a $600,000 Boca homestead and a $40,000 bank account may still qualify for summary administration, because the homestead is excluded from the value calculation and the remaining probate estate sits under the threshold. People hear “$75,000 limit” and assume their half-million-dollar home disqualifies them. Often it does not. But the homestead’s exempt status is not automatic — it depends on who is inheriting and on a homestead determination, which is frequently handled through a separate Petition to Determine Homestead Status of Real Property. Getting that wrong can quietly blow up an otherwise clean summary administration.

Two other real-property wrinkles come up constantly in this market:

• Rental and investment property is not homestead. A condo the decedent rented out does not get homestead protection, so its full value counts toward the $75,000 cap. One income property is usually enough to force a formal administration.
• Title companies want certainty. Even after an Order of Summary Administration distributes a house, a buyer’s title underwriter may scrutinize how creditors were handled, especially if death was recent. The two-year prong of § 735.201 is clean here; a recent death cleared under the $75,000 prong sometimes invites more questions before a property can be resold.

How the small-estate procedures actually unfold

It helps to see the realistic sequence rather than just the statutory text.

1. Inventory and characterize the assets. Separate probate assets from non-probate assets (jointly titled accounts, payable-on-death designations, and properly funded trust property pass outside probate entirely). Then within the probate assets, separate exempt from non-exempt, and personal property from real property.
2. Pick the track. Only exempt personalty plus a tiny medical/funeral remainder? Disposition without administration. House or larger personal estate but under the cap (or more than two years since death)? Summary administration. Income property, contested heirs, unknown creditors, or value over the line with no exemption to rescue it? Formal administration.
3. File and serve. For summary administration, file the petition, address homestead through a companion petition if real property is involved, and serve any beneficiary who hasn’t joined. Florida also requires reasonable diligent search for creditors; known creditors must be paid or provided for.
4. Get the order and record it. The Order of Summary Administration is recorded in the county’s official records, and for real estate it becomes a link in the chain of title. This is the step that converts a court order into a marketable home.

One liability point that surprises families: in a summary administration, the people who receive the assets remain personally liable to the decedent’s creditors for up to two years after death, in proportion to what they received. Skipping a full creditor process is a convenience, not a discharge. Distribute too fast, and an heir can find themselves answering for a bill they thought was someone else’s problem.

How Florida compares to other states

Clients who have handled an estate elsewhere often expect a small-estate affidavit they can simply sign and present to a bank, the way many states allow. Florida does not work that way for most assets — its small-estate relief runs through the court under Chapter 735, not through a self-executing affidavit. New York, for example, structures its abbreviated path as a voluntary administration for small estates and runs traditional matters through the Surrogate’s Court; the mechanics, dollar thresholds, and terminology are different enough that out-of-state experience can be actively misleading. Firms that practice across jurisdictions, like Morgan Legal, see this constantly — their overview of and their breakdown of the are a useful contrast for anyone assuming Florida and New York are interchangeable. They are not. For Florida-specific matters, the firm’s addresses the rules discussed here.

When a small estate isn’t the right answer

Streamlined procedures are a gift when they fit and a trap when they’re forced. Reach for formal administration — or at least get a second opinion — when any of these are present:

• The estate includes real property that isn’t protected homestead (rental, investment, or out-of-county land).
• There are unknown or disputed creditors, and death was recent.
• The heirs disagree, or a will’s validity is in question.
• There are claims to pursue on the estate’s behalf — a personal representative with letters is needed to litigate.
• Ongoing administration is required, such as managing a business or collecting income.

The cleanest estates we see at our Boca Raton practice are the ones where the planning was done in advance — a funded revocable trust, beneficiary designations kept current, and a clear homestead path. If you’re thinking ahead, our notes on wills and estate planning and our overview of Florida probate generally are good next reads. If you’re already holding a death certificate and a stack of paperwork, the fastest way to know which Chapter 735 track applies to your situation is to have someone characterize the assets correctly the first time. You can reach our office to walk through it.

Small estate procedures in Florida are real, they work, and they save families thousands of dollars and months of waiting. They just have to be matched to the estate honestly — and in this part of Florida, that honesty usually starts with one question: what does the deed say?

Frequently Asked Questions

What is the difference between summary administration and disposition without administration in Florida?

Summary administration (Fla. Stat. § 735.201) is a court procedure for estates worth $75,000 or less in non-exempt assets, or where the decedent died more than two years ago; it can transfer both personal property and real estate by court order. Disposition without administration (§ 735.301) is far narrower — it applies only when the estate holds nothing but exempt property plus a small amount of cash roughly equal to final medical and funeral bills, and it can never transfer real property.

Can I use a Florida small estate procedure to transfer a house?

Only summary administration can transfer real property, and only when the estate qualifies — generally under the $75,000 cap (measured after subtracting exempt property like protected homestead) or after more than two years since death. Disposition without administration cannot transfer a house, condo, or any real estate, because it is limited to personal property.

Does my parent's $500,000 Boca Raton home disqualify the estate from summary administration?

Not necessarily. Florida homestead that descends to qualifying heirs is generally exempt from creditors’ claims, so its value often does not count toward the $75,000 summary administration limit. A valuable home can still pass through summary administration if the remaining non-exempt probate estate is under the cap — but the homestead’s exempt status usually must be confirmed through a Petition to Determine Homestead Status.

Do heirs face any liability after a summary administration?

Yes. In a summary administration, the recipients of the estate’s assets remain personally liable to the decedent’s creditors for up to two years after death, in proportion to the value they received. Skipping the full formal creditor process speeds distribution but does not discharge valid debts, so heirs should be cautious before spending or reselling inherited assets too quickly.

How long does Florida's disposition without administration take?

When it genuinely fits, it is the fastest option Florida probate offers — often a single informal application by affidavit or letter with no hearing and no attorney requirement, processed by the clerk in a matter of days to weeks. The trade-off is its narrow eligibility: only estates limited to exempt property plus minimal final medical and funeral expenses qualify.

I’ve handled a lot of these cases here in Boca Raton, and the same misunderstanding comes up again and again: people assume that “no will” means “the state takes everything.” That almost never happens. What actually happens is more orderly—and sometimes more frustrating—than that.

What “intestate” actually means in Florida

Dying intestate means dying without a legally valid will. A person can also be partially intestate—say, they wrote a will that disposed of their bank accounts but never mentioned a vacant lot they bought years later. The assets the will doesn’t cover pass by intestacy.

Florida’s intestate scheme lives in sections 732.101 through 732.111 of the Florida Statutes. The opening provision, §732.101, states the basic rule: any part of the estate not effectively disposed of by will passes to the deceased person’s heirs as prescribed by statute, and the estate vests in those heirs at the moment of death. That vesting point is more than a technicality. It means the heirs own their interest in the real property immediately, subject to administration—a fact that shapes everything from who can list a house for sale to who is responsible for the property taxes.

Who inherits when there is no will: the order of succession

Florida’s distribution rules turn almost entirely on family structure—specifically, whether there is a surviving spouse and whether the deceased had descendants (children, grandchildren, and so on). Here is the order set by §732.102 (spouse’s share) and §732.103 (everyone else):

• Surviving spouse, no descendants: the spouse takes the entire intestate estate.
• Surviving spouse, and all descendants are shared by both spouses (and the spouse has no other descendants): the spouse again takes the entire estate.
• Surviving spouse, plus descendants of the deceased who are not also descendants of the surviving spouse: the spouse takes one-half, and the descendants split the other half.
• Surviving spouse who has other descendants of their own, even where all of the deceased’s descendants are shared: the spouse takes one-half, the descendants the other half.
• No surviving spouse: the estate goes to the descendants, then—if none—to parents, then siblings, then more remote relatives, in the order §732.103 lays out.

If there is no spouse and no descendants, the estate climbs the family tree: to the deceased’s parents equally (or the survivor of them), then to brothers and sisters and their descendants, then split between the maternal and paternal grandparents’ lines. Only if no heir can be found anywhere on that map does the estate escheat to the State of Florida under §732.107—and in practice that is rare.

How descendants split a share: per stirpes

When property passes to descendants, Florida uses per stirpes distribution (§732.104). The estate divides at the first generation with a living member. Each living child takes a share; the share of a child who died before the decedent passes down to that child’s own descendants by representation. So if a man dies leaving two living daughters and three grandchildren from a son who predeceased him, the estate splits into thirds at the children’s level—each daughter gets a third, and the late son’s third is divided among his three children.

The homestead wrinkle—why Florida real property is different

This is where intestate estates in Florida diverge sharply from the tidy percentages above, and it’s the piece I spend the most time explaining to clients. Florida’s homestead protection, rooted in Article X, Section 4 of the Florida Constitution and implemented through §732.401, governs the deceased’s primary residence—and it overrides the ordinary intestate shares.

If the decedent is survived by a spouse and by descendants, the homestead does not simply split 50/50 like other property. Under the default rule, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants. Since 2010, §732.401 has also given the surviving spouse an alternative: within six months of the decedent’s death, the spouse may elect to take an undivided one-half interest as tenant in common instead of the life estate, with the descendants taking the other half. That election deadline is firm, and choosing wrong can cost a family real money.

A few practical consequences flow from this:

1. Homestead usually passes outside the probate estate. Protected homestead is not a probate asset available to pay most creditors, and it descends to the constitutionally defined heirs even though probate is the forum where title gets confirmed.
2. Selling the house gets complicated. A life-tenant spouse and remainder descendants must generally agree before the home can be sold free and clear, and life-tenant and remaindermen split obligations like taxes, insurance, and upkeep in ways that breed disputes.
3. The protection only attaches to a qualifying homestead. A second home, a rental duplex, or raw acreage is ordinary intestate property and follows the §732.102–.103 shares—not the homestead rules.

For a Boca Raton estate built around a waterfront condo or a single-family home that has appreciated for decades, getting the homestead analysis right is frequently the whole case. The Florida probate process for these estates lives or dies on careful title work.

What probate without a will looks like, step by step

Procedurally, an intestate estate moves through the same court process as a testate one—it just lacks a nominated personal representative. Formal administration under Chapter 733 generally runs like this:

• Petition for administration. An interested person—often the surviving spouse or an adult child—files in the circuit court for the county of residence (Palm Beach County, for Boca Raton estates).
• Appointment of a personal representative. With no will naming an executor, §733.301 sets the priority: the surviving spouse first, then the person selected by a majority in interest of the heirs, then the heir nearest in degree. The court issues Letters of Administration.
• Notice to creditors and a claims period. Known creditors get direct notice; others are reached by publication, with a limited window to file claims under §733.702.
• Marshaling and valuing assets. This includes ordering appraisals on real property—a step that matters doubly in real-property-heavy estates.
• Paying valid debts and expenses, then distributing what remains to the statutory heirs and closing the estate.

Smaller or simpler estates may qualify for summary administration under §735.201—available when the value of the probate estate (less exempt property) is $75,000 or less, or when the decedent has been dead more than two years. Summary administration is faster and cheaper, but it doesn’t appoint a personal representative, which can be awkward when real property needs to be managed or sold.

One point worth underscoring: many of the —locating heirs, valuing illiquid assets, refereeing disagreements among beneficiaries—are amplified, not reduced, when there’s no will to provide instructions.

Common problems unique to intestate estates

Heirs who didn’t expect to inherit (and ones who did)

Because intestacy follows bloodlines, it can produce results the family finds surprising. An estranged adult child still inherits. A long-term unmarried partner inherits nothing—Florida intestacy makes no provision for cohabitants, no matter how long the relationship lasted. Stepchildren who were never adopted are not heirs. These outcomes are not the court being harsh; they’re the statute doing exactly what it says.

Disputes over who serves and who inherits

With no will to contest, fights tend to shift to administration: who should be personal representative, whether a claimed marriage was valid, whether a child was the decedent’s biological or legally adopted descendant. While there’s no will to challenge, the same procedural muscles used to in a testate estate—standing, formal notice, evidentiary hearings—reappear in disputes over heirship and appointment.

Pretermitted and posthumous complications

Florida law also addresses afterborn heirs: a child conceived before the decedent’s death but born afterward inherits as if born during the decedent’s lifetime (§732.106). And the 120-hour survival rule in §732.601 provides that an heir who fails to survive the decedent by 120 hours is treated as having predeceased—a rule that quietly redirects inheritances in tragedies where two family members die close together.

How to avoid intestacy in the first place

The cleanest fix is the obvious one: a valid will, ideally paired with tools that keep real property out of probate altogether. A properly drafted will, a revocable living trust, a Florida enhanced life estate (“lady bird”) deed, or coordinated beneficiary and survivorship designations can each ensure your home and other Florida land pass the way you intend—not the way a statute dictates. For families with property in more than one state, coordinated planning across jurisdictions is essential; firms like regularly handle estates that straddle Florida and New York.

If you’ve lost a loved one who died without a will, or you’re trying to plan so your family never faces intestacy, the worst move is to guess at the rules. A short conversation early can prevent years of conflict over a house. Reach out before you list, transfer, or pay down anything tied to estate real property.

Frequently Asked Questions

Who inherits if you die without a will in Florida?

Florida’s intestate succession statutes (sections 732.101-732.103) decide. A surviving spouse takes the entire estate when there are no descendants, or when all descendants are shared by both spouses and the spouse has no other children. If the deceased left descendants who are not also the spouse’s, the spouse and descendants each take one-half. With no spouse, the estate passes to descendants, then parents, then siblings, and on up the family tree.

Does the State of Florida take your property if you have no will?

Almost never. The estate escheats to Florida under section 732.107 only when no heir can be located anywhere in the statutory order, all the way out to remote relatives. As long as any qualifying relative exists, the property goes to them, not the state.

What happens to the family home in an intestate Florida estate?

Protected homestead follows its own rules under Article X, Section 4 of the Florida Constitution and section 732.401, not the ordinary intestate shares. A surviving spouse generally receives a life estate with a remainder to the descendants, or may elect within six months to take an undivided one-half interest as tenant in common instead. The homestead typically passes outside the reach of most creditors.

Can an unmarried partner inherit under Florida intestacy?

No. Florida intestate succession recognizes only legal spouses and blood or legally adopted relatives. A long-term unmarried partner, and stepchildren who were never legally adopted, inherit nothing under intestacy. The only way to provide for them is through a will, trust, deed, or beneficiary designation.

Do you still need probate if there is no will?

Usually yes. An intestate estate still goes through probate to confirm heirs, settle debts, and transfer title, especially for real property. Larger estates use formal administration under Chapter 733; smaller estates valued at $75,000 or less (or where the person died more than two years ago) may qualify for the faster summary administration under section 735.201.

If you have been named in a will, or you expect to petition for appointment after a loved one’s death in Palm Beach County, it helps to understand exactly what the law will ask of you before you sign anything. The responsibilities are real, the deadlines are enforced, and the personal exposure for getting it wrong is not theoretical. This guide walks through what a Florida personal representative actually does, with particular attention to estates that hold real property, which is the norm in Boca Raton.

Who Can Serve as a Personal Representative in Florida

Florida is stricter than most states about who qualifies. Under Florida Statutes sections 733.302 through 733.304, an individual must be at least 18 years old, mentally and physically capable of performing the duties, and never convicted of a felony. Beyond that, there is a residency wrinkle that surprises a lot of families.

A non-resident of Florida can serve only if they are closely related to the decedent: a spouse, a parent, a sibling, a child, or another close blood or adoptive relative (or the spouse of such a relative). A friend who lives in New Jersey, no matter how trusted, cannot serve as personal representative of a Florida estate. Banks and trust companies authorized to do business in Florida may also serve. This catches snowbird families constantly, where the decedent retired to Boca Raton but the children scattered across the country.

When more than one person is qualified and willing, the court follows a statutory preference order: the person nominated in the will comes first, then the choice of a majority of beneficiaries, then the heir nearest in degree of kinship. Understanding the distinctions between probate paths matters here, and our colleagues’ explainer on is a useful primer even for Florida families weighing formal versus summary administration.

The Core Duties: What the Personal Representative Must Do

Once the court issues Letters of Administration, the document that gives the representative legal authority to act, the clock starts on a sequence of statutory obligations. These are the load-bearing duties of the role:

1. Take possession of and protect estate assets. Under section 733.607, the representative is entitled to take possession of the decedent’s property and is responsible for safeguarding it during administration.
2. Serve notice on beneficiaries and known creditors. A Notice of Administration goes to interested persons, and a Notice to Creditors is published and served on reasonably ascertainable creditors.
3. Prepare and file an inventory. Within 60 days of issuance of Letters, the representative must file a verified inventory listing estate assets and their estimated fair market value, per section 733.604.
4. Investigate, allow, or object to creditor claims. Valid claims get paid in the statutory order of priority; questionable ones can be challenged.
5. Pay taxes and administrative expenses. This includes final income taxes, any estate tax (rare for most Florida estates), and the costs of administration.
6. Distribute the remaining assets. After debts and expenses are settled, the residue passes to beneficiaries according to the will or, absent a will, the intestacy statute.
7. Account for the administration and close the estate. A final accounting and petition for discharge formally end the representative’s responsibility.

Each of these carries its own paperwork and timing. Florida probate is not a single hearing; it is a months-long administrative process, and the representative is the engine that drives it forward.

The Creditor Period and Why It Controls the Timeline

One duty deserves singling out because it governs how fast an estate can close: the creditor claims period. After the Notice to Creditors is first published, creditors generally have three months to file a claim against the estate, under section 733.702. For creditors who were reasonably ascertainable and served directly, the period is the later of three months from first publication or 30 days from service on them.

This is why a personal representative cannot simply distribute the inheritance the week after the funeral, even when beneficiaries are pressing. Distributing before the creditor window closes exposes the representative personally if a legitimate claim later surfaces with nothing left to pay it. Patience here is not bureaucratic caution; it is self-protection.

Real Property in Florida Estates: A Heavier Lift

In Boca Raton, the largest asset in most estates is a home, a condominium, or investment real estate. Real property creates duties that liquid estates simply do not have, and a careless personal representative can lose serious value through inattention.

Securing and Maintaining the Property

The representative must keep insurance in force, pay property taxes and any homeowners’ or condo association assessments, maintain the property physically, and protect it from waste. A vacant Florida home is vulnerable to humidity damage, mold, hurricane exposure, and lapsed coverage. If a wind policy is canceled because no one paid the premium and a storm hits before closing, the loss falls on an estate the representative was charged with protecting.

Homestead: The Trap That Catches Everyone

Florida’s constitutional homestead protection (Article X, Section 4) is unique and frequently misunderstood. A decedent’s protected homestead generally passes outside the probate estate and outside the reach of most creditors, descending to the surviving spouse and heirs under section 732.401. A personal representative who treats the family home as an ordinary probate asset, selling it to pay creditors or listing it on the inventory without qualification, can create liability and litigation. Determining homestead status early, ideally before any sale, is one of the most consequential judgment calls in a Florida estate.

Selling Real Property During Administration

Sometimes the home must be sold to raise cash for debts or because beneficiaries want their shares in money rather than in a shared deed. Whether the representative has independent authority to sell, or needs a court order, depends on the will’s language and the type of administration. A will granting a power of sale simplifies matters enormously. Without it, the representative may need court authorization under section 733.613. Either way, the representative owes a duty to obtain fair value and to deal at arm’s length, never selling to themselves or a relative at a discount.

The Fiduciary Standard and Personal Liability

Everything a Florida personal representative does is measured against a fiduciary standard. The representative must be loyal to the estate, impartial among beneficiaries, prudent with assets, and scrupulously honest in record-keeping. Commingling estate funds with personal funds, favoring one beneficiary, or sloppy accounting can all trigger a surcharge action, where the representative is ordered to repay losses out of their own pocket.

Disputes are not rare. Beneficiaries challenge accountings, contest the validity of a will, or accuse a representative of self-dealing. When conflict escalates, it becomes the kind of that can stall an estate for years. A representative who keeps clean records, communicates with beneficiaries, and follows counsel’s advice is far better positioned if a fight erupts.

• Keep estate money separate. Open a dedicated estate bank account using the estate’s federal tax ID number; never run estate funds through a personal account.
• Document every transaction. Receipts, statements, and a running ledger turn a contested accounting into a non-event.
• Treat beneficiaries even-handedly. The will or the intestacy statute, not personal preference, dictates who gets what.
• Do not distribute early. Wait out the creditor period and confirm all obligations are satisfied first.

Compensation: The Representative Is Entitled to Be Paid

Serving is real work, and Florida law provides for reasonable compensation. Section 733.617 sets a presumptively reasonable commission based on the compensable value of the estate, on a graduated scale, for example, three percent on the first million dollars of value, with lower percentages on amounts above. The attorney who represents the estate is compensated separately under section 733.6171. A representative may waive a fee, and family members often do, but the entitlement exists, and it is paid from the estate, not out of the beneficiaries’ pockets after the fact.

Why Most Florida Personal Representatives Hire an Attorney

In a formal administration, Florida essentially requires it. Florida Probate Rule 5.030 provides that a personal representative who is not the sole interested person must be represented by an attorney. That is not a marketing line; it is built into the procedure because the duties carry legal consequences a layperson cannot reliably navigate alone, especially where real property, homestead, or creditor disputes are involved.

If you are administering an estate with Florida real estate, or you have just learned you have been named to serve, getting oriented early prevents the costly mistakes that surface late. Our handles these administrations across Palm Beach County, and you can review our broader resources on Florida probate administration and wills and estate planning, or reach out directly through our Boca Raton office to talk through your specific situation.

The Bottom Line

A Florida personal representative is a court-appointed fiduciary tasked with collecting and protecting estate assets, settling legitimate debts and taxes, and distributing the remainder under the will or the intestacy statute, all under deadlines set by the Florida Probate Code. The role is more demanding when the estate holds real property, where homestead questions, insurance, taxes, and sale authority all come into play. Done carefully, with good records and competent counsel, it closes cleanly. Done carelessly, it exposes the representative to personal liability. Knowing the difference up front is the whole point.

Frequently Asked Questions

How long does a personal representative have to file the estate inventory in Florida?

Under Florida Statutes section 733.604, the personal representative must file a verified inventory of estate assets, with estimated fair market values, within 60 days after the court issues Letters of Administration. The inventory is served on interested persons who request it.

Can a personal representative who lives outside Florida serve?

Only if they are a close relative of the decedent, such as a spouse, parent, sibling, child, or another qualifying blood or adoptive relative (or the spouse of one). A non-resident with no such relationship cannot serve, though qualified Florida banks and trust companies may. This rule comes from Florida Statutes section 733.304.

Is the personal representative personally liable for the decedent's debts?

No, the representative does not become responsible for the decedent’s debts personally. However, the representative can be held personally liable for mishandling the estate, such as distributing assets before the creditor period closes, commingling funds, or breaching fiduciary duties, which can result in a surcharge ordering repayment from their own funds.

Does the family home have to go through probate in Florida?

Often the homestead passes outside the probate estate and outside the reach of most creditors under Florida’s constitutional homestead protection (Article X, Section 4) and section 732.401. A petition to determine homestead status is commonly filed. A personal representative should confirm homestead status before treating the home as an ordinary probate asset or selling it.

Does a Florida personal representative get paid?

Yes. Florida Statutes section 733.617 provides for reasonable compensation, with a graduated commission based on the value of the estate as a presumptively reasonable fee. The estate’s attorney is compensated separately under section 733.6171. A representative may choose to waive the fee, which family members frequently do.

Choosing a Florida probate attorney means hiring a lawyer who regularly practices probate and estate administration before the circuit court in the county where your loved one lived, who understands Florida’s homestead and creditor rules, and who is candid about fees, timelines, and the realities of your estate. The right attorney is not necessarily the one with the flashiest ad. It is the one who has closed estates like yours, returns your calls, and tells you the truth about what the next nine to eighteen months will look like.

That definition sounds simple. In practice, picking well is harder than most families expect, because probate sits at the intersection of court procedure, tax, real estate, and family emotion. In Boca Raton and the rest of Palm Beach County, where so many estates are built around a homestead condo, a waterfront house, or a portfolio of rental property, the stakes of choosing the wrong lawyer are mostly measured in delay, missed deductions, and clouded title. This guide walks you through how to choose, what to ask, and where families go wrong.

What a Florida Probate Attorney Actually Does

Before you can evaluate a lawyer, it helps to know what the job requires. Florida probate is governed primarily by Chapters 731 through 735 of the Florida Statutes and by the Florida Probate Rules. In most formal estates, the law effectively requires the personal representative to be represented by an attorney. Florida Probate Rule 5.030 provides that a personal representative who is not a Florida lawyer must be represented by counsel admitted to practice in Florida, except in the narrow cases where the personal representative is the sole interested person. So for the typical family, hiring a probate attorney is not optional. It is the entry ticket.

A competent probate lawyer will, at minimum:

• Determine whether the estate qualifies for summary administration (generally available under Florida Statutes section 735.201 when the estate is valued at $75,000 or less, excluding exempt property, or when the decedent has been dead more than two years) or requires formal administration.
• Open the estate in the correct county circuit court, petition for appointment of the personal representative, and obtain Letters of Administration.
• Identify and protect homestead property, which under Article X, Section 4 of the Florida Constitution passes outside the probate estate and is shielded from most creditors but follows strict descent rules.
• Serve the statutory Notice to Creditors, evaluate claims, and manage the creditor period (generally three months from first publication under section 733.702).
• Marshal assets, handle valuations, file the inventory, address tax matters, and ultimately distribute the estate and discharge the personal representative.

If you want a deeper look at how this sequence runs end to end, our overview of the Florida probate process breaks the steps down in plain English.

Why Real-Property Experience Matters in a Boca Raton Estate

Here is the part that generic “find a probate lawyer” articles miss. Most Boca Raton estates are real-property-heavy. The wealth is in the house, the condo, the vacation place up north, or the rental units, not in a tidy brokerage account that transfers with a beneficiary form. Real property changes the analysis in ways that demand a lawyer who has actually handled it.

Homestead is its own legal universe

Florida homestead is one of the most misunderstood concepts in the entire estate system. A house that the decedent owned and lived in as a primary residence may not be a probate asset at all, yet it still requires a court determination of homestead status to clear title. If the decedent was survived by a spouse or minor child, the constitutional restrictions on devise can override what the will says. I have seen wills that left the home to an adult child be partially undone because a surviving spouse held a life estate or elected a one-half interest under the homestead descent statute. A lawyer who does not work with homestead routinely can miss this and cloud the title for years.

Title, liens, and sale during administration

When an estate needs to sell real property, you are no longer just probating. You are conveying marketable title. That means dealing with title underwriters, satisfying liens and mortgages, confirming the personal representative’s authority to sell, and sometimes obtaining a court order authorizing the sale. Ask any prospective attorney how often they coordinate with title companies and whether they have moved estate property through closing. A probate lawyer who treats real estate as an afterthought will cost you a buyer.

Co-owned and out-of-state property

Snowbird estates frequently include property in another state, which can trigger ancillary administration under section 734.102. Co-ownership, tenancy issues, and partition disputes among heirs over a single beloved property are common in South Florida. You want a lawyer who has untangled these before, not one learning on your dime.

Questions to Ask Before You Hire a Florida Probate Lawyer

Treat the initial consultation as an interview. A good probate attorney will welcome hard questions because the answers are how trust gets built. Bring this list:

1. How much of your practice is probate and estate administration? You want someone for whom this is core work, not an occasional sideline between closings and traffic tickets.
2. Have you handled estates with significant real property in Palm Beach County? Local court practice and local title norms matter.
3. Who will actually do my work, you or an associate or paralegal? There is nothing wrong with delegation, but you should know who answers when you call.
4. How do you charge, and what is your best estimate for an estate like mine? See the fee section below.
5. What is your realistic timeline? Formal administration in Florida commonly runs nine to eighteen months once the creditor period and tax matters are factored in. Be skeptical of anyone promising a quick wrap on a complex estate.
6. How will you communicate, and how quickly do you respond? The single most common complaint about probate lawyers is silence. Ask directly.
7. Have you litigated will contests or creditor disputes? Even if your estate looks calm, knowing your lawyer can fight if a sibling or creditor surfaces is reassuring.

Understanding Florida Probate Attorney Fees

Fees in Florida probate are not a mystery, and any attorney who is cagey about them is showing you something. Florida Statutes section 733.6171 sets out a schedule of presumptively reasonable compensation for the attorney representing the personal representative in a formal administration, calculated as a percentage of the inventory value of the estate plus income. As a rough illustration, the statute treats $3,000 as reasonable for estates up to $40,000, and adds tiered percentages as the estate grows: 3 percent on the next bracket up through $1 million, with the percentage stepping down for larger estates.

A few important points families should understand:

• The statutory schedule is a default, not a mandate. You and the attorney can agree to hourly or flat fees instead, and many lawyers do, especially when the statutory percentage would overpay for a straightforward estate.
• Extraordinary services, such as a will contest, the sale of real property, or tax controversy work, can justify additional fees beyond the base.
• Costs such as filing fees, publication, and certified copies are separate from attorney fees.
• Get the fee arrangement in writing. Florida requires written disclosure of the basis of the fee, and a clear engagement letter protects everyone.

The cheapest quote is rarely the best value. An attorney who charges a fair fee but closes the estate cleanly and avoids a title problem saves you far more than a discount lawyer who leaves a mess. For a sense of how a focused probate practice structures this work, you can also review Morgan Legal’s .

Red Flags to Watch For

Over the years, the warning signs that a probate engagement will go badly tend to repeat. Walk away, or at least dig deeper, if you encounter any of these:

• Guarantees about outcome or timing. Probate runs on a court calendar and a statutory creditor period. No honest lawyer guarantees a date.
• No clear answer on fees. Vagueness here predicts vagueness everywhere.
• Dismissiveness about the real estate. If the house is the estate and the lawyer waves it off, that is a mismatch for a Boca Raton family.
• Poor responsiveness during the courtship phase. If they are slow to call you back when they want your business, imagine how it goes after you sign.
• Pressure to file formal administration when summary administration may fit. A good lawyer matches the procedure to the estate, not to their invoice.

Local Knowledge and the Right Fit

Probate is local. The judges, the clerk’s office procedures, the publication outlets, and the title underwriters all vary by county. An attorney who regularly appears in the Palm Beach County circuit court and knows how the local division handles homestead petitions and creditor claims will move your case more smoothly than an out-of-area firm treating you as a file number. Local also means accessible. You should be able to sit across a desk when you need to, especially when grief and family tension are in the room.

That said, depth of bench matters too. The strongest probate work often comes from firms that handle the full estate lifecycle, from drafting wills and trusts through administration and, when necessary, litigation. Families dealing with a contested estate benefit from a lawyer fluent in disputes. While the rules differ by state, the strategic anatomy of a fight is similar nationwide, which is why Morgan Legal’s discussion of and its broader guide to are useful reading even for a Florida estate, since they illustrate how a probate-focused firm thinks through these problems.

How to Make the Final Decision

After your consultations, you will usually find that one attorney stands out. Weigh four things: relevant experience (especially with real property and homestead), transparency about fees and timeline, responsiveness, and personal fit. Trust your read of that last factor. You are about to spend many months working closely with this person on one of the most emotional projects of your life. Competence opens the door, but it is candor and care that carry you through.

If you are administering a Boca Raton estate and want to talk it through with a probate attorney who takes real property seriously, reach out for a consultation. Bring the will, the death certificate if you have it, and a rough list of assets. An hour of clear conversation early can save you a year of confusion later.

Frequently Asked Questions

Do I need a probate attorney in Florida, or can I handle it myself?

In most formal administrations you must be represented by a Florida-licensed attorney. Florida Probate Rule 5.030 requires counsel for a personal representative unless the personal representative is the sole interested person or is themselves a Florida lawyer. Even where representation is not strictly required, such as some summary administrations, the homestead, creditor, and title issues common in Florida estates make professional help advisable.

How much does a probate attorney cost in Florida?

Florida Statutes section 733.6171 sets a presumptively reasonable fee schedule based on a percentage of the estate’s inventory value, but this is a default, not a mandate. Many lawyers offer hourly or flat fees instead, and extraordinary services like selling real property or handling a will contest can add to the cost. Always get the fee arrangement in writing before you engage.

How long does probate take in Florida?

Summary administration can sometimes conclude in a few weeks to a couple of months. Formal administration more commonly runs nine to eighteen months, largely because of the statutory three-month creditor claim period, asset valuation, real estate sales, and any tax matters. Estates with disputes or out-of-state property take longer.

Why does real-property experience matter when choosing a probate attorney?

Many Boca Raton estates are built around a homestead, condo, or rental property. Florida homestead law, title clearance, lien satisfaction, court-authorized sales, and ancillary administration for out-of-state property are technical areas where mistakes cloud title for years. A lawyer who routinely handles estate real estate protects both the asset and the heirs.

What questions should I ask a Florida probate lawyer before hiring?

Ask how much of their practice is probate, whether they have handled real-property-heavy estates in Palm Beach County, who will actually do your work, how they charge and what they estimate for your estate, their realistic timeline, how they communicate, and whether they handle will contests and creditor disputes.

I have handled Palm Beach County estates where the entire fight came down to a single line on an inventory: a Boca Raton condominium valued at one number by the personal representative and a very different number by a disgruntled heir. Real-property-heavy estates raise the stakes on accounting, because the biggest asset on the page is often illiquid, hard to value, and slow to sell. This guide walks through what Florida actually requires, where personal representatives get into trouble, and how careful accounting protects everyone involved.

What the Florida probate inventory must contain

The inventory is the foundation. Before you can account for what happens to an estate, you have to establish what the estate was on the day the decedent died. Florida Probate Rule 5.340 and section 733.604 of the Florida Statutes govern this filing, and they are more specific than most people expect.

A complete Florida inventory identifies and values all property that passes through probate, broken out so the court can see what it is dealing with. That means listing:

• Real property located in Florida, described well enough to identify it (a legal description is the safe practice, not just a street address).
• Tangible personal property — vehicles, jewelry, art, furnishings, collections.
• Intangible assets — bank accounts, brokerage accounts, stocks, bonds, and business interests, identified by institution and account.
• The estimated fair market value of each asset as of the date of death.
• For homestead real property, a separate designation, because Florida homestead is not a probate asset in the ordinary sense and is treated differently for both creditor protection and accounting.

That homestead distinction trips up a lot of personal representatives. If the Boca Raton home was the decedent’s homestead and passes to heirs protected from creditors, it generally should not be lumped in with assets available to pay debts. Listing it correctly on the inventory, with the homestead status noted, is the first step in protecting it. Our firm covers this in more depth on our Florida probate overview.

How to value real property on the inventory

Florida requires the estimated fair market value as of the date of death, not the assessed value the county property appraiser uses for taxes. Those two numbers are frequently far apart in South Florida, where market values have outrun assessed caps under the Save Our Homes provisions for years.

For a routine estate, a personal representative may reasonably estimate value from comparable sales. But when the real property is the dominant asset, when beneficiaries disagree, or when an estate tax return is in play, a formal appraisal by a licensed appraiser is the prudent move. The date-of-death value matters beyond probate, too: it usually establishes the heirs’ stepped-up cost basis under federal tax law, which affects capital gains when they eventually sell. Getting that number wrong can cost a family far more at sale than any probate fee.

Who is entitled to see the inventory and when

Under Rule 5.340, the personal representative must serve a copy of the inventory on the Department of Revenue (when required), the surviving spouse, each heir at law in an intestate estate, each residuary beneficiary in a testate estate, and any other interested person who requests it in writing. Service is not optional courtesy — it is a duty, and failing to provide the inventory to a beneficiary who asks is one of the most common grounds for a removal petition.

A beneficiary who believes the inventory is incomplete or that values are wrong can request a more particular accounting and, if necessary, compel the personal representative to supplement it. That right to information is the backbone of beneficiary protection in Florida probate. When information is withheld, disputes escalate quickly — the kind of conflict that leads to in courts across the country.

The estate accounting: tracking every dollar

If the inventory is a snapshot, the accounting is the movie. Section 733.602 imposes a fiduciary duty on the personal representative to settle and distribute the estate as expeditiously and efficiently as is consistent with the best interests of the estate. The accounting is how that duty is proven.

A final accounting in a Florida formal administration must show, at a minimum:

1. All cash and property charged to the personal representative — essentially the starting inventory values carried forward.
2. All receipts — rents collected, interest, dividends, refunds, and the proceeds of any asset sold during administration.
3. All disbursements — funeral expenses, valid creditor claims, taxes, attorney’s fees, personal representative compensation, property maintenance, and the costs of administration.
4. All distributions already made to beneficiaries.
5. The property remaining on hand and a proposed plan of distribution for it.

The format matters. Florida Probate Rule 5.346 prescribes the form of a fiduciary accounting, and a proper accounting separates principal from income and uses a consistent valuation method throughout. Sloppy or commingled accounting is not just a procedural problem; it invites objections and can expose the personal representative to personal liability.

Why real-property estates make accounting harder

An estate that is mostly cash and securities can almost account for itself. A Boca Raton estate built around a waterfront home, a rental duplex, or a commercial parcel is a different animal. Three issues recur:

• Carrying costs. Property taxes, association dues, insurance, utilities, and repairs accrue every month the property sits unsold. Each of these is a disbursement that must be documented and justified in the accounting.
• Income. If the property is rented, the personal representative collects rent and must account for it as estate income, net of expenses, separated from principal.
• Sale proceeds and timing. When a property sells mid-administration, the accounting must reconcile the date-of-death value against the actual sale price, the closing costs, and any gain or loss. A sale that lags the market can draw beneficiary scrutiny over whether the representative acted prudently.

This is also where good record-keeping from day one pays off. I tell every personal representative the same thing: open a dedicated estate bank account, run every dollar through it, and keep every receipt. The accounting practically writes itself when the records are clean — and becomes a nightmare when they are not.

Waiving the accounting and other shortcuts

Florida law does not force every estate through a full formal accounting. Under section 733.901 and Rule 5.400, beneficiaries can waive the final accounting and the requirement of a full disclosure if they choose. In smaller, harmonious family estates, all the residuary beneficiaries often sign waivers and receipts, and the personal representative is discharged without filing a detailed accounting with the court.

That said, a waiver is a gift the personal representative should not take for granted. A waiver obtained without giving beneficiaries enough information to understand what they are giving up can be challenged later. The safer practice, especially in real-property estates with significant values, is to prepare a clean accounting and provide it even when waivers are offered. It costs a little more on the front end and prevents far more expensive disputes on the back end.

Deadlines and consequences personal representatives should know

Florida probate runs on deadlines, and the accounting-related ones are unforgiving:

• Inventory: generally within 60 days after letters of administration are issued (Rule 5.340).
• Creditor claims: creditors generally have the later of three months from first publication of the notice to creditors or 30 days from being served, before their claims are barred — and the accounting must reflect how each claim was handled.
• Final accounting and distribution: filed when administration is complete, before the personal representative petitions for discharge.

Miss these duties and the consequences are real. A personal representative who fails to inventory or account properly can be surcharged for losses, ordered to pay attorney’s fees, removed under section 733.504, and in serious cases held personally liable. The fiduciary role is not honorary; it carries genuine exposure. If you have been named to serve and feel out of your depth, that is the moment to get counsel — not after a beneficiary files an objection.

How a probate attorney protects you

For most Boca Raton families, the value of working with a probate attorney is not in knowing the rules exist — it is in applying them to an estate with real-world complications: a homestead with multiple heirs, a rental property generating income mid-administration, an out-of-state beneficiary demanding answers, or a creditor claim that doesn’t belong. A good probate lawyer builds the inventory and accounting so they hold up if challenged, and so the personal representative is fully protected when the court grants discharge.

Morgan Legal handles estate administration and litigation across multiple states, including dedicated representation and, for families with assets up north, . If you are administering a real-property estate in Palm Beach County and want the inventory and accounting done right, reach out to our office to talk through your situation. You can also review how a valid will shapes the entire administration before disputes ever start.

Frequently Asked Questions

When is the inventory due in a Florida probate?

Under Florida Probate Rule 5.340, the personal representative generally must file the inventory within 60 days after letters of administration are issued. The inventory lists every probate asset with its estimated fair market value as of the decedent’s date of death and must be served on the surviving spouse, residuary beneficiaries, heirs, and any interested person who requests it in writing.

What is the difference between the inventory and the estate accounting?

The inventory is a date-of-death snapshot of what the estate owns and what each asset is worth. The estate accounting is the ongoing financial report covering everything that happened during administration: receipts like rent and sale proceeds, disbursements like taxes and creditor claims, distributions to beneficiaries, and what property remains. The inventory establishes the starting point; the accounting tracks every dollar from there to discharge.

Can beneficiaries waive the final accounting in Florida?

Yes. Under section 733.901 and Rule 5.400, residuary beneficiaries can waive the final accounting and full disclosure by signing waivers and receipts. This is common in small, harmonious estates. However, a waiver obtained without giving beneficiaries enough information can be challenged later, so preparing a clean accounting is often the safer practice in larger or real-property-heavy estates.

How should real property be valued on a Florida probate inventory?

Florida requires the estimated fair market value as of the date of death, not the county-assessed tax value, which is often much lower in South Florida. For estates where real property is the dominant asset or where beneficiaries disagree, a formal appraisal by a licensed appraiser is prudent. That date-of-death value also typically sets the heirs’ stepped-up cost basis for future capital gains, so accuracy matters well beyond probate.

What happens if a personal representative fails to file an inventory or accounting?

The consequences are serious. A personal representative who fails to inventory or account properly can be compelled to file, removed from office under section 733.504, surcharged for losses caused by mismanagement, ordered to pay attorney’s fees, and in some cases held personally liable. Florida treats the role as a true fiduciary duty, so missing these obligations creates real legal exposure.

That distinction matters enormously when an estate is heavy on real property. A waterfront condo, a homestead in one spouse’s name, a rental fourplex, or a vacant lot held as tenants in common can each behave very differently at death. Below, an experienced Florida probate perspective on how survivorship and beneficiary designations actually work here — and where they quietly fail.

What “non-probate” really means under Florida law

Florida probate is governed by Chapters 731 through 735 of the Florida Statutes. Probate is the court-supervised process of identifying a decedent’s probate assets, paying valid claims, and distributing what remains. The key phrase is “probate assets.” Under section 731.201(32), Florida Statutes, a probate asset is property that was owned by the decedent and that does not pass automatically by operation of law or by contract.

Three categories routinely avoid probate:

• Property held with rights of survivorship. When a joint tenant or a husband and wife holding as tenants by the entireties dies, title vests in the survivor instantly. There is nothing for the estate to distribute.
• Beneficiary-designated accounts and policies. Life insurance, annuities, IRAs, 401(k)s, and accounts titled payable-on-death (POD) or transfer-on-death (TOD) pass by contract to whoever is named, not through the will.
• Assets held in a funded revocable living trust. The trust, not the decedent, owns the property, so the trustee distributes it privately.

Everything else — a brokerage account in the decedent’s sole name with no TOD, a car titled only to them, a parcel of land owned individually — is a probate asset. Florida offers two main court tracks for those: formal administration and the faster summary administration available under section 735.201 when the probate estate is valued at $75,000 or less (excluding exempt property) or when the decedent has been dead more than two years.

Joint ownership of Florida real property: the three flavors

How a deed is worded controls everything. In our office, the single most common probate surprise involves real estate that the family assumed was joint but legally was not. Florida recognizes three forms of co-ownership, and only two of them avoid probate.

Tenants by the entireties (married couples)

When spouses take title together, Florida presumes a tenancy by the entireties unless the deed clearly says otherwise. At the first spouse’s death, the survivor owns the whole property automatically — no probate, and creditors of the deceased spouse generally cannot reach it. This is the cleanest outcome and the one most Boca Raton couples already have without realizing it.

Joint tenancy with right of survivorship (JTWROS)

Unmarried co-owners — a parent and adult child, two siblings, partners — can hold property as joint tenants with right of survivorship, but in Florida the deed must expressly state the survivorship language. Without those words, the law defaults to tenancy in common. That default trips up countless estates. A father who adds his daughter to the deed “so it passes to her” has often created a tenancy in common by accident, meaning his half still goes through probate.

Tenants in common (no survivorship)

Tenants in common each own a separate, devisable share. When one dies, their fractional interest does not go to the other owners — it passes under their will or, if none, by Florida’s intestacy statute (Chapter 732). That undivided interest is a probate asset, and it is exactly the kind of real-property fraction that forces an otherwise simple estate into formal administration.

Florida’s enhanced life estate (Lady Bird) deed

For real-property-heavy estates, the enhanced life estate deed — commonly called a Lady Bird deed — deserves special mention. It lets an owner keep full control during life, including the right to sell or mortgage without anyone’s consent, while naming a “remainder” beneficiary who takes title automatically at death. The home transfers outside probate, the owner preserves the homestead and Save Our Homes property-tax benefits, and Medicaid estate-recovery exposure is typically reduced.

Lady Bird deeds are not codified by a single statute; they are a creature of Florida common law and title-industry practice, which means drafting precision matters. A poorly worded one can cloud title or accidentally defeat the homestead protections it was meant to preserve. We see botched do-it-yourself versions surface during probate more often than we would like.

Beneficiary-designated assets: powerful but fragile

Contract-based transfers are wonderfully efficient until a designation is stale, blank, or contradicted by the will. A few hard truths from probate files:

1. The beneficiary form beats the will. If your life insurance still names an ex-spouse and your will leaves everything to your children, the ex-spouse generally collects. Florida’s revocation-on-divorce rule (section 732.703) voids many designations to a former spouse, but it does not cover every asset type, and out-of-state or ERISA-governed plans can override it.
2. “Estate” as beneficiary drags the asset into probate. Naming your estate as the beneficiary of an IRA or policy is the easiest way to forfeit the whole point of the designation — the money now passes through the court and becomes reachable by creditors.
3. No living beneficiary means it lapses into the estate. If every named beneficiary has predeceased and no contingent is listed, the proceeds default to the probate estate.
4. Minor beneficiaries create a guardianship problem. A minor cannot receive significant funds directly; without a trust, the court may require a guardianship of the property, which is slower and costlier than probate itself.

Florida also allows transfer-on-death registration for securities and brokerage accounts under the Uniform Transfer-on-Death Security Registration Act (sections 711.50–711.512). What Florida notably does not have is a transfer-on-death deed for real estate. Several states permit one; Florida does not. That gap is precisely why the Lady Bird deed fills such an important role here.

How real-property-heavy estates get tripped up

Because Florida lacks a TOD deed, real estate is the asset most likely to require probate even when the rest of the estate was carefully planned. Common scenarios we untangle in Palm Beach County:

• The solely owned homestead. A surviving spouse assumes the house “just passes,” but if the deceased spouse held it alone, it is a probate asset — though Florida’s constitutional homestead protections (Article X, Section 4) shield it from most creditors and dictate special inheritance rules.
• The out-of-state survivor who never updated the deed. A property bought before a remarriage, or before a child was added, still sits in one name.
• The rental held in an LLC with no operating-agreement succession. The real estate avoids probate, but the membership interest in the LLC may not.
• The fractional inherited interest. A decedent who inherited one-third of a family property as a tenant in common leaves that one-third to probate, even if they personally owned nothing else.

These are the situations where survivorship planning and beneficiary designations look complete on paper but leave a real-property gap. For a broader look at where estates stall, this overview of covers the procedural hurdles that apply in both Florida and New York. Families with assets in multiple states often need coordinated counsel; our colleagues handling regularly partner on ancillary matters, and our manages the in-state filings.

Homestead: Florida’s most misunderstood asset

No discussion of Florida probate is complete without homestead. The constitutional homestead is not just a tax break — it carries inheritance restrictions that can override a will. If a decedent is survived by a spouse or minor child, they generally cannot freely devise the homestead. The surviving spouse typically receives a life estate (or may elect a one-half tenant-in-common interest) with the remainder to the descendants.

This means a beneficiary designation or survivorship deed that conflicts with homestead law can be partially undone by the court. Homestead determinations are frequently the reason an otherwise non-probate estate still needs a probate judge to enter an order confirming the protected status and proper succession. If you are organizing your real property and want to align your deeds with your will, our guidance on wills and devises and our Florida probate overview are good starting points.

Putting it together: a simple decision filter

When a family brings us a list of assets, we sort each one with a quick filter:

• Is there a surviving joint owner with survivorship rights? → passes automatically, no probate.
• Is there a living, valid beneficiary (POD, TOD, insurance, retirement)? → passes by contract, no probate.
• Is it titled in a funded trust? → trustee distributes, no probate.
• Is it solely owned with no designation, or a tenant-in-common interest? → probate asset; choose summary or formal administration.
• Is it homestead real property? → special rules apply; expect a court order even if creditors cannot touch it.

Most Boca Raton estates land on a mix — a few accounts that transfer cleanly and one or two pieces of real property that do not. The goal of good planning is to shrink that probate column to zero before it is ever needed.

Talk to a Florida probate attorney

If you are an executor staring at a deed and unsure whether it triggers probate, or a property owner who wants survivorship and beneficiary tools to actually work, get a precise read on your titling before assuming anything passes “automatically.” Small wording differences carry large consequences in Florida real estate. Reach out through our Boca Raton office to review your specific assets.

Frequently Asked Questions

Do jointly owned homes in Florida always avoid probate?

Not always. Only joint ownership with survivorship rights avoids probate: tenancy by the entireties for married couples, or joint tenancy with right of survivorship when the deed expressly states it. If a deed simply lists two owners without survivorship language, Florida treats it as a tenancy in common, and the deceased owner’s share becomes a probate asset that passes under their will or by intestacy.

What happens if a Florida beneficiary designation names someone who has died?

If the named beneficiary predeceased the owner and no contingent beneficiary is listed, the proceeds usually default into the probate estate. The asset then passes through the will or Florida intestacy law and can become reachable by the decedent’s creditors, which defeats the purpose of the designation. Reviewing and updating beneficiary forms after every major life event prevents this.

Can I use a transfer-on-death deed for real estate in Florida?

No. Florida does not authorize transfer-on-death deeds for real property, even though some other states do. The closest Florida equivalent is the enhanced life estate, or Lady Bird, deed, which lets you keep full control during life and pass the property to a named remainder beneficiary at death without probate while preserving homestead and tax benefits.

Does a beneficiary designation override my will in Florida?

Generally yes for that specific asset. Payable-on-death accounts, life insurance, annuities, and retirement plans pass by contract to the named beneficiary regardless of what your will says. Florida’s revocation-on-divorce statute voids many designations to a former spouse, but it does not cover every account type, so conflicting designations and wills should be reconciled deliberately.

If most assets avoid probate, do I still need a probate attorney?

Often yes, because real property is the asset most likely to require probate in Florida. A single solely owned parcel, a tenant-in-common fraction, or a homestead with surviving family can force a court proceeding even when accounts transfer cleanly. A probate attorney confirms which assets truly pass outside court and handles the homestead determination and any required administration.

That short answer hides a great deal of nuance. A will contest is not a do-over because someone feels a relative was treated unfairly. It is a focused legal proceeding with specific grounds, shifting burdens of proof, and unforgiving timelines. This guide walks through what it actually takes to challenge a will in Florida, with particular attention to the real-property and homestead issues that dominate Boca Raton and Palm Beach County estates.

Who Can Contest a Will in Florida

Not everyone who is unhappy with a will can challenge it. Florida limits will contests to an “interested person”, defined under section 731.201 of the Florida Statutes as someone whose interest in the estate could be affected by the outcome of the proceeding. In plain terms, you must stand to gain or lose something.

That typically includes:

• Beneficiaries named in the current will who would receive less than they expected.
• Beneficiaries under a prior will who were cut out or reduced by the newer document.
• Heirs at law (the family members who would inherit under Florida’s intestacy statutes if there were no valid will at all).
• Creditors, in limited circumstances tied to their claims.

If invalidating the will would not improve your position, you generally lack standing. A disinherited stepchild with no statutory claim, for example, cannot simply object because the result feels wrong. Before filing anything, an experienced attorney works backward from the question that decides standing: if this will falls, what does the prior will or the intestacy default actually give you?

The Legal Grounds for Contesting a Will

Florida recognizes a defined set of grounds. A will contest succeeds only by proving one of them, and “my mother promised me the house” is not on the list. Section 732.5165 captures the core rule: a will is void if procured by fraud, duress, mistake, or undue influence.

Lack of Testamentary Capacity

To make a valid will in Florida, the testator must have been of “sound mind” at the moment of signing. Capacity is a low bar by design. The testator only needs to have generally understood the nature and extent of their property, the natural objects of their bounty (their family and close relations), and the practical effect of signing the will.

Importantly, capacity is measured at the time of execution, not before or after. A person can have a dementia diagnosis, take medication, or have bad days and still sign a valid will during a lucid interval. That is why contemporaneous evidence matters so much: medical records near the signing date, the drafting attorney’s notes, and the recollections of the witnesses who watched the testator sign.

Undue Influence

Undue influence is the most frequently litigated ground in Florida, and the most fact-intensive. It is not mere persuasion, nagging, or even a strained family dynamic. The contestant must show that the testator’s free will was overpowered, so that the document reflects the wishes of the influencer rather than the testator.

Florida law gives contestants a powerful tool here. A presumption of undue influence arises when a contestant proves three elements: the alleged influencer (1) occupied a confidential or fiduciary relationship with the testator, (2) was a substantial beneficiary under the will, and (3) was active in procuring the will. Once that presumption is triggered, section 733.107(2) shifts the burden, requiring the beneficiary to come forward with evidence that the will was not the product of undue influence.

Courts weigh a recognized set of “active procurement” indicators, including whether the beneficiary was present when the will was signed, recommended or selected the drafting attorney, knew the contents of the will before execution, gave instructions to the attorney, or secured the witnesses. No single factor is decisive, but the pattern tells the story.

Fraud, Duress, and Mistake

These grounds appear less often but matter. Fraud can mean fraud in the execution (the testator was tricked into signing a document they did not know was a will) or fraud in the inducement (the testator was deceived by false statements into making gifts they otherwise would not have). Duress involves coercion through threats. Mistake covers a testator who signed the wrong document or was mistaken about a material fact that drove the bequest.

Improper Execution

Florida’s execution formalities are strict, and a technical failure can void an otherwise heartfelt will. Section 732.502 requires that the will be signed by the testator at the end, in the presence of two attesting witnesses, who must each sign in the presence of the testator and of each other. Miss any of those steps and the will fails on formality alone. Notably, Florida does not recognize handwritten (holographic) wills that lack proper witnessing, even if they are entirely valid in another state.

Why the “No-Contest” Clause Won’t Stop You in Florida

Many out-of-state clients arrive convinced that challenging a will means automatically forfeiting their inheritance because the document contains an “in terrorem” or no-contest clause. In Florida, that fear is misplaced. Section 732.517 makes any provision penalizing an interested person for contesting a will unenforceable. The same rule applies to trusts under section 736.1108. You do not lose your bequest merely for asking the court to examine whether the will is valid. This is a meaningful difference from states that enforce such clauses, and it shapes strategy in cross-border estates where a New York or California document is offered for probate in Florida.

The Florida Will Contest Process, Step by Step

A will contest unfolds inside the broader probate case. The sequence generally looks like this:

1. The will is offered for probate. The named personal representative files a petition for administration in the circuit court of the county where the decedent lived, which for Boca Raton estates is Palm Beach County.
2. Notice of administration is served. Once the court issues letters of administration, the personal representative serves a notice of administration on interested persons. This notice starts the clock.
3. Objections are filed. An interested person who wants to challenge the will’s validity must file a timely objection, then pursue it through a petition for revocation of probate.
4. Discovery. Both sides gather evidence: depositions of witnesses and the drafting attorney, the decedent’s medical and financial records, prior estate-planning files, and communications among the players.
5. Mediation. Palm Beach County probate divisions routinely order mediation. A large share of contests resolve here, often through a negotiated reallocation of the estate.
6. Trial. If the dispute does not settle, the court holds an evidentiary hearing, applies the burden-shifting framework, and rules on validity.

Burden of Proof: A Two-Step Dance

Section 733.107 sets the structure. First, the proponent of the will carries the initial burden to establish its formal execution and attestation, essentially proving the will was signed and witnessed correctly. Once that prima facie showing is made, the burden shifts to the contestant to prove the ground on which probate is opposed. The undue-influence presumption discussed above can shift it back again. Understanding who must prove what, and when, often decides the case before a single witness testifies.

Deadlines That Can End a Case Before It Starts

Florida probate deadlines are short and rarely forgiven. The most consequential one comes from section 733.212: an interested person served with a copy of the notice of administration must file any objection to the validity of the will, the qualifications of the personal representative, or the court’s venue or jurisdiction within three months of service. Miss that window and the objection is, in the words of the statute, “forever barred.”

There is also a protective tool for those who fear a will may be quietly admitted. Under section 731.110, an interested person may file a caveat with the court. Once a caveat is on file, the court cannot admit the will or appoint a personal representative until the caveator has been served by formal notice and given an opportunity to participate. For an out-of-state heir worried about a Florida property being probated without their knowledge, a caveat is often the first defensive move.

Because these deadlines run from the date of service, the practical lesson is simple: the moment you suspect a problem, talk to a probate litigator. Waiting to “see how things develop” is how valid claims die.

Real Property and Homestead: The Boca Raton Wrinkle

Estates in this market are frequently dominated by real estate, and that changes the calculus of a will contest. Florida’s constitutional homestead protection can override the terms of a will entirely. If the decedent is survived by a spouse or minor child, the homestead generally cannot be freely devised; instead it passes according to the constitution and section 732.4015, often to the surviving spouse for life with a remainder to the descendants, or as a tenancy in common.

This means a will that purports to leave the Boca Raton residence to a friend or a single child may be partly ineffective regardless of whether the document itself is valid. A skilled probate attorney evaluates two questions at once: is the will valid, and even if it is, does homestead or the surviving spouse’s elective share under section 732.2065 change who actually gets the house? Sometimes the better path is not a contest at all but a homestead or elective-share claim that reaches the same result with far less litigation risk. We address these property-specific issues in more depth on our Florida probate and wills pages.

What a Will Contest Costs, and Whether It’s Worth It

Contests are expensive and emotionally draining, so the threshold question is always whether the recovery justifies the fight. A few honest considerations:

• Evidence drives outcomes. Undue influence and capacity cases turn on records and witnesses that exist (or don’t) before you ever file. Thin evidence rarely improves at trial.
• Settlement is the norm. Most Florida contests resolve at mediation, which means the realistic outcome is often a negotiated share, not a total victory.
• Time matters. Litigation can freeze distribution of the estate for a year or more, which is its own cost when real property must be maintained, insured, and taxed in the meantime.

For families administering estates across state lines, coordination is essential. Probate in different states follows different rules, and a New York will or ancillary New York property can interact with a Florida estate in complicated ways. Morgan Legal’s team handles and can explain how the compare to Florida’s process. For Florida-side administration and litigation, the firm’s works alongside local Boca Raton counsel.

Talk to a Boca Raton Probate Attorney Before the Clock Runs

If you believe a Florida will is invalid, or you are defending a will against a challenge, the decisions you make in the first weeks matter most. Statutory deadlines are short, evidence is perishable, and the homestead and elective-share rules can quietly reshape the entire dispute. A focused review by an experienced probate attorney will tell you quickly whether you have standing, a viable ground, and a realistic path to recovery. Contact our office to discuss your situation before the three-month objection window closes.

This article is general information about Florida probate law and is not legal advice. Every estate is different. Consult a licensed Florida attorney about your specific circumstances.

Frequently Asked Questions

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

Florida law allows a will to be challenged for lack of testamentary capacity, undue influence, fraud, duress, mistake, or improper execution. Section 732.5165 of the Florida Statutes provides that a will is void if procured by fraud, duress, mistake, or undue influence, and section 732.502 sets the signing and witnessing formalities that must be met.

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

Generally three months. Under section 733.212, an interested person served with a copy of the notice of administration must file any objection to the will’s validity within three months of service, or the objection is forever barred. Because the deadline runs from the date of service, you should consult a probate litigator immediately if you suspect a problem.

Will I lose my inheritance if I contest the will?

Not in Florida. Section 732.517 makes no-contest (in terrorem) clauses unenforceable, and section 736.1108 applies the same rule to trusts. You do not forfeit your bequest simply for asking the court to determine whether the will is valid, even if the will contains a clause threatening to disinherit anyone who challenges it.

Who has the burden of proof in a Florida will contest?

Under section 733.107, the proponent first proves the will was properly executed and witnessed. The burden then shifts to the contestant to prove the ground for invalidity. If the contestant establishes a confidential relationship, substantial benefit, and active procurement, a presumption of undue influence arises and shifts the burden back to the beneficiary defending the will.

Can a will override Florida homestead protection on a Boca Raton home?

Often not. If the decedent leaves a surviving spouse or minor child, Florida’s constitutional homestead protection and section 732.4015 can control how the residence passes regardless of the will’s terms. A will leaving the home to someone else may be partly ineffective, which is why homestead and elective-share claims are evaluated alongside any will contest.

If you are an executor, personal representative, or heir who just learned that a Florida deed is standing between you and closing out a relative’s estate, this guide walks through how ancillary probate works, why real estate is almost always the trigger, and what an estate facing it in Palm Beach County should expect.

What ancillary probate is — and why Florida real estate forces it

The word “ancillary” simply means secondary or supplementary. The primary, or domiciliary, probate happens in the state where the decedent legally lived — New York, New Jersey, Ohio, wherever home was. Ancillary administration is the companion proceeding opened in Florida to handle assets that physically sit here and fall outside the reach of the home-state court.

Real property is the classic example, and on the estates we handle in Boca Raton, it is the reason for ancillary probate in the overwhelming majority of cases. Here is the legal logic: real estate is governed by the law of the state where it is located — a doctrine called lex situs. A surrogate’s court in Manhattan has no jurisdiction to order a transfer of a deed recorded in Palm Beach County. Only a Florida circuit court, sitting in probate, can issue an order that the county clerk and a title company will honor.

That is the core problem ancillary probate solves. Without it, the Florida home, condo, or lot stays frozen in the deceased owner’s name. It cannot be sold, refinanced, or cleanly inherited, and a title examiner will flag it the moment anyone tries to close.

Common assets that trigger Florida ancillary administration

• A Florida home, condominium, or co-op unit titled in the decedent’s sole name (or as a tenant in common).
• Vacant or investment land — lots, acreage, or commercial parcels held individually.
• A tangible Florida asset such as a boat or vehicle titled and located in the state.
• A debt owed to the decedent by a Florida resident, or a cause of action that arose here.

Notice what is not on that list. Bank and brokerage accounts usually follow the owner’s domicile and are administered in the home state. A snowbird’s checking account at a Boca branch typically does not, by itself, require ancillary probate — it is the deed that does.

When you can avoid ancillary probate entirely

Before assuming you are locked into a second proceeding, confirm how the Florida property was actually titled. Several forms of ownership pass outside probate and need no court involvement at all:

• Joint tenancy with right of survivorship — title vests automatically in the surviving owner. A certified death certificate, recorded in the county, usually clears it.
• Tenancy by the entirety — the married-couple version of survivorship; the surviving spouse takes the whole.
• Property held in a revocable living trust — the trustee, not a probate court, controls and distributes it. This is the single most effective way to keep Florida real estate out of ancillary probate.
• A Florida enhanced life estate (“Lady Bird”) deed — the remainder beneficiary takes automatically at death.

If the deed reads only the decedent’s name, or names them as a tenant in common with a now-deceased co-owner, those shortcuts are off the table and ancillary administration is the path forward.

How the ancillary probate process works in Florida

Florida builds in a streamlined route for out-of-state estates that have already cleared probate at home. Under § 734.102, when there is a will already admitted in another state, an authenticated (exemplified) copy of that foreign will and the order admitting it can be recorded and admitted to record in the Florida county where the property sits. This piggyback feature spares families from re-litigating a will that another court has already validated.

The practical sequence usually looks like this:

1. Identify the right county and court. The petition is filed in the circuit court of the Florida county where the real estate is located — for Boca Raton property, that is Palm Beach County.
2. Qualify a personal representative. The foreign personal representative is generally entitled to serve here, provided they meet Florida’s eligibility rules. Florida law restricts who may serve as personal representative — broadly, a Florida resident, or a close relative regardless of residence — so a non-relative out-of-state executor sometimes cannot serve and a qualified Florida fiduciary steps in.
3. File the petition and supporting documents. This includes the authenticated copies of the foreign will and admission order, the death certificate, and an oath of the personal representative. A Florida-licensed attorney is required to represent the estate in formal administration.
4. Provide notice to creditors. The personal representative publishes a notice to creditors and serves known creditors, opening the claims window under § 733.702. Florida’s nonclaim statute, § 733.710, bars most claims not filed within two years of death.
5. Address Florida creditors and taxes. Ancillary administration exists in part so Florida creditors get a fair shot at the in-state assets. Valid claims are paid from the Florida estate before distribution.
6. Transfer the property. Once claims are resolved, the court authorizes distribution or sale, and clean, insurable title passes to the heirs or a buyer.

The role of the personal representative across two states

An executor who qualified in the home state does not automatically have power over the Florida deed. The whole reason for the ancillary case is to grant that authority within Florida’s jurisdiction. Until Florida Letters of Administration issue, even a properly appointed foreign executor cannot sign a deed that a title company will insure. We see families lose closings on this exact gap — a buyer is ready, the home-state executor signs, and the title underwriter rejects it because no Florida court authorized the transfer. The challenges that arise from coordinating two jurisdictions echo the broader in any state.

Timeline, cost, and the practical realities

A clean ancillary administration in Palm Beach County typically runs a few months — often in the range of four to nine months — driven largely by the creditor notice period and the court’s calendar. The minimum window is shaped by the claims process: creditors generally have three months from first publication of the notice to file claims, and that period cannot be compressed.

Costs include court filing fees, the cost of obtaining authenticated copies of out-of-state documents, publication fees for the notice to creditors, and attorney’s fees. Florida statutes provide a presumptively reasonable fee schedule for personal representatives and their attorneys tied to estate size, though ancillary matters are frequently handled on a negotiated flat or reduced basis because the asset count is small — often a single parcel.

Two pressure points come up again and again with out-of-state estates:

• Document logistics. Getting authenticated (not merely certified) copies from a clerk in another state, with the correct exemplification, slows families down more than anything else. Order them early.
• Eligibility surprises. Discovering mid-process that the named out-of-state executor cannot serve under Florida’s residency-and-relationship rule forces a substitute and a fresh filing. Confirm eligibility before you petition.

Where will contests and disputes fit in

Ancillary administration can also become the venue where a dispute over the will plays out as to the Florida property. If interested parties question the validity of the foreign will, Florida has its own procedures — and the grounds and mechanics differ from other states. New York, for example, handles challenges through its surrogate’s courts under its own rules; if you want a sense of how contest procedures vary by jurisdiction, this overview of is a useful comparison. In Florida, the timing matters enormously: objections to a will’s validity are governed by strict deadlines once formal notice of administration is served, so anyone considering a challenge should act quickly.

Planning ahead: keeping Florida property out of ancillary probate

For out-of-state owners who still hold their Florida home or investment property, ancillary probate is largely avoidable with planning. A revocable living trust holding the deed is the cleanest solution — on death, the successor trustee transfers the property with no Florida court involvement. A properly drafted Lady Bird deed is a lighter-weight alternative for a single homestead parcel. If you are reviewing how the property is titled, our pages on wills and estate documents and Florida probate explain the options in more depth.

For families already in the middle of an out-of-state estate with Florida real estate, the priority is getting a Florida personal representative qualified so title can move. Our Boca Raton attorneys handle ancillary administrations regularly, and we coordinate with out-of-state counsel so the two proceedings run in parallel rather than in conflict. You can also review the firm’s for a broader overview, or contact our office to discuss a specific estate.

Ancillary probate is rarely as daunting as it first sounds. It is a narrow, well-defined proceeding with a clear purpose: to let a Florida court do what only a Florida court can — clear title to Florida land. Handled correctly, it closes cleanly and lets the family move on.

Frequently Asked Questions

Do I need ancillary probate if my out-of-state relative only had a bank account in Florida?

Usually not. Bank and brokerage accounts generally follow the owner’s legal domicile and are handled in the home-state probate, even if the branch is in Florida. Ancillary probate in Florida is almost always triggered by real estate, such as a home, condo, or vacant lot titled in the decedent’s individual name. Confirm how each asset is titled before assuming a second proceeding is required.

Where do I file ancillary probate for a Boca Raton property?

You file in the circuit court of the Florida county where the real estate is located. For property in Boca Raton, that is Palm Beach County. The petition includes authenticated copies of the foreign will and the order admitting it, the death certificate, and the personal representative’s oath, and a Florida-licensed attorney is required for formal administration.

Can the out-of-state executor handle the Florida property without ancillary probate?

No. An executor who qualified in another state has no automatic authority over a Florida deed. Until a Florida court issues Letters of Administration, no title company will insure a transfer the foreign executor signs. The ancillary case exists precisely to grant that authority within Florida’s jurisdiction.

How long does ancillary probate take in Florida?

A clean ancillary administration typically takes about four to nine months. The timeline is driven largely by the creditor notice period, which gives creditors at least three months from first publication to file claims, and by the court’s calendar. Delays usually come from obtaining authenticated out-of-state documents, so order those early.

How can my family avoid ancillary probate on Florida property in the future?

The most effective option is to hold the Florida real estate in a revocable living trust, so a successor trustee can transfer it with no court involvement. Other options include joint ownership with right of survivorship, tenancy by the entirety for married couples, and a properly drafted Lady Bird (enhanced life estate) deed for a single homestead parcel.

I practice probate here in Boca Raton, and I’ll be honest about what most families don’t expect: the hard part of a modern estate is rarely the house anymore. Real property is visible and recorded. The accounts are the problem. A retired couple may have a checking account at one bank, a brokerage account at Schwab, an old 401(k) rolled into an IRA, a Coinbase wallet nobody mentioned, and a dozen logins protected by two-factor authentication tied to a phone that’s now disconnected. Sorting that out is where probate gets slow, and where mistakes get expensive.

What counts as a “digital” versus a “financial” account in probate

The distinction matters more than it sounds, because Florida treats the two categories differently.

A financial account holds money or securities: a bank account, a credit union account, a brokerage or mutual fund account, a money-market account, savings bonds, or a retirement account. These are tangible economic assets. The personal representative collects them, reports their date-of-death value, and distributes them under the will or under Florida’s intestacy rules in Chapter 732.

A digital asset, by contrast, is defined under Florida Statutes Chapter 740 as an electronic record in which an individual has a right or interest. That sweeps in email, cloud storage, social media accounts, domain names, loyalty points, photos stored online, and the content of electronic communications. Some digital assets carry real financial value, such as cryptocurrency or a monetized YouTube channel. Others have only sentimental or practical value, like a Gmail account that happens to hold the only record of where the decedent banked.

Cryptocurrency sits awkwardly between the two. It is a financial asset in substance, but accessing it depends entirely on digital credentials, namely private keys or exchange logins. Lose the keys and the asset is gone, court order or not. That technical reality drives much of how we plan around it.

Which accounts actually go through Florida probate

Not every account does. Before a personal representative spends a year administering an estate, the first job is to separate probate assets from non-probate assets. The dividing line is whether the asset has a built-in transfer mechanism that survives death.

• Pass automatically, outside probate: accounts with a valid payable-on-death (POD) or transfer-on-death (TOD) beneficiary; accounts held jointly with rights of survivorship; retirement accounts and life insurance with a living named beneficiary; and accounts already titled in a revocable living trust.
• Must go through probate: a solely owned checking or brokerage account with no beneficiary listed; an IRA whose named beneficiary predeceased the owner with no contingent named; a crypto wallet held only in the decedent’s individual name; and any account where the beneficiary form was never completed or was left blank.

This is why a quick beneficiary review during life is the cheapest estate planning a person can do. A POD designation added at the teller window in five minutes can keep a six-figure account out of court entirely. Conversely, the most common reason a “simple” estate ends up in formal administration is a blank beneficiary line on an account the owner assumed was handled.

The two main paths: summary versus formal administration

Florida offers two probate tracks. Summary administration is available under Florida Statutes § 735.201 when the probate estate is worth $75,000 or less, or when the decedent has been dead for more than two years. It is faster and cheaper and works well for a single modest bank account. Formal administration is the standard process for larger estates and is required when a personal representative needs ongoing legal authority, for example to liquidate a brokerage portfolio, deal with an uncooperative crypto exchange, or sell real property and reconcile the proceeds.

In our Boca Raton practice, where estates frequently combine a condo or homestead with substantial investment accounts, formal administration is the norm. The personal representative receives Letters of Administration, and those letters are the key that unlocks the financial institutions.

How a personal representative gains access to financial accounts

Once the court issues Letters of Administration, the personal representative presents them, along with a certified death certificate, to each financial institution. Banks and brokerages have dedicated estate departments, and most will freeze a solely owned account the moment they learn of the death, then release funds only to the appointed representative.

A few practical points that trip families up:

1. The bank will not talk to you before you are appointed. Grief and urgency don’t change this. Even a spouse who paid every bill from that account has no legal authority over a solely titled account until letters issue. Plan for a gap of several weeks.
2. Date-of-death values must be documented. The representative requests a statement showing the balance as of the date of death, which fixes the value for accounting and any tax reporting. Brokerage accounts also need a cost-basis step-up analysis under federal law, because heirs generally inherit assets at their date-of-death value.
3. Retirement accounts have their own rules. An IRA or 401(k) payable to the estate (because no individual beneficiary survived) lands in probate and is then subject to less favorable distribution timelines than one inherited directly. This is a planning failure worth preventing.

Digital assets and the Florida Fiduciary Access to Digital Assets Act

Accessing the decedent’s online life is governed not by the general probate code but by Florida’s version of the Revised Uniform Fiduciary Access to Digital Assets Act, codified in Chapter 740 (often shortened to RUFADAA). Florida adopted it to resolve a genuine conflict: federal privacy and anti-hacking laws, plus the terms-of-service contracts every user clicks through, can make it a crime to log into someone else’s account, even a deceased relative’s.

Chapter 740 sets up a tiered priority for who controls digital assets after death:

• First, the online tool. If the provider offers an “online tool” that lets the user name who can access the account after death, that choice controls. Google’s Inactive Account Manager and Facebook’s Legacy Contact are the leading examples.
• Second, the estate plan. If no online tool was used, a direction in the decedent’s will, trust, or power of attorney governs access, and a well-drafted will should grant the personal representative explicit authority over digital assets and the content of communications.
• Third, the terms of service. If neither of the above speaks, the provider’s own contract decides, and many default to no disclosure of communication content.

The statute also draws a sharp line between the catalogue of communications (the metadata: who emailed whom and when) and the content of those communications (what the messages actually say). A fiduciary can more readily obtain the catalogue; obtaining content requires either the decedent’s explicit consent or a court order. For a personal representative trying to find out which institutions hold the decedent’s money, the catalogue is often enough.

What this means in practice for a Boca Raton estate

When a client dies without naming a legacy contact and without a digital-assets clause in the will, the personal representative frequently has to petition the probate court for an order directing a provider to disclose account information. That is doable, but it costs time and fees. The lesson, repeated in every consultation I have, is that the will should contain modern language authorizing the representative to access digital assets under Chapter 740. A 1998 will does not, and that gap shows up as months of delay.

Cryptocurrency: the asset that probate can’t reach without the keys

Crypto deserves its own warning because it breaks the usual assumption that a court order can compel access. With a bank, the institution holds the money and a judge can order it released. With self-custodied cryptocurrency held in a hardware or software wallet, there is no institution. Whoever controls the private key or seed phrase controls the coins, full stop. No probate judge can recreate a lost key.

Two scenarios recur:

• Exchange-held crypto (Coinbase, Kraken, Gemini): these behave more like financial institutions. The personal representative submits letters and a death certificate to the exchange’s estate process and can recover the assets. Slow, but workable.
• Self-custodied crypto in a private wallet: recoverable only if the family can locate the seed phrase. If the decedent kept it solely in their head or in an unfindable place, the value is permanently lost, and it still has to be reported if its existence is known.

The planning answer is not to write the seed phrase into the will, because a will becomes a public record once filed. Instead, the will or trust references the existence of crypto and points to a separate, secure mechanism for the keys. Done right, the asset transfers; done wrong, it evaporates.

Common and costly mistakes

After years of administering these estates, the same avoidable errors keep appearing:

1. Assuming a joint account or POD was set up when it wasn’t. Verify designations in writing. Memory and intention are not legal title.
2. Closing or moving money before appointment. Using the decedent’s debit card or transferring funds after death, even to “keep things running,” creates personal liability and can look like misappropriation.
3. Ignoring small recurring accounts. Auto-paying subscriptions, PayPal balances, and rewards points drain or expire while the estate sits open. Inventory everything early.
4. Old wills with no digital-asset authority. If the will predates 2016, assume it needs updating to function under Chapter 740.
5. Disputes left to fester. When heirs disagree over who should control accounts or suspect a beneficiary change was procured improperly, the matter can escalate into litigation. Understanding how unfold helps families decide early whether to settle or fight.

How real-property estates complicate the account picture

Most of the estates we handle in Boca Raton are real-property heavy. A homestead condo or a waterfront home anchors the estate, and the accounts orbit around it. That combination creates friction the accounts alone wouldn’t. Property taxes, HOA dues, insurance premiums, and maintenance keep coming due while the estate is open, and those bills are paid from the very accounts the personal representative is trying to collect and preserve. If the largest liquid account is stuck in probate while a $900-a-month HOA bill marches on, cash flow becomes a real management problem.

This is also why coordinating the homestead analysis with the account administration matters. Florida homestead property passes under special constitutional rules that can keep it out of the general probate estate, while the bank account funding its upkeep is squarely in probate. A personal representative who treats them as one undifferentiated pile gets the accounting wrong. For families weighing how their probate will be structured, it helps to understand that depending on the estate’s size and complexity, a principle that holds in Florida as well.

When to bring in a probate attorney

Florida requires representation by counsel in most formal administrations, so the question is usually when, not whether. Call before you contact the banks, not after. Early counsel prevents the unauthorized-transfer mistakes, gets the petition for letters moving so the institutions will engage, and frames the digital-asset access strategy before a provider has refused you and forced a court motion.

Our office handles probate for estates across Palm Beach County, and we coordinate with on complex matters. If you’ve recently lost a loved one and are staring at a stack of unfamiliar account statements and logins, start with our Florida probate overview, review your own will and beneficiary designations while you’re thinking about it, and then reach out for a consultation. The earlier the accounts are mapped, the smoother and cheaper the administration.

Frequently Asked Questions

Do all bank and investment accounts have to go through probate in Florida?

No. Accounts with a valid payable-on-death or transfer-on-death beneficiary, accounts held jointly with rights of survivorship, retirement accounts and life insurance with a living named beneficiary, and accounts titled in a revocable trust pass outside probate. Only solely owned accounts with no surviving beneficiary designation must go through Florida probate.

Can a personal representative access the decedent's email and online accounts?

It depends on Florida’s Fiduciary Access to Digital Assets Act (Chapter 740). If the decedent used an online tool like Google’s Inactive Account Manager or named the representative in the will, access is straightforward. Otherwise, obtaining the content of electronic communications usually requires the decedent’s prior consent or a probate court order.

What happens to cryptocurrency in a Florida estate if no one has the password?

Crypto held on an exchange like Coinbase can be recovered by submitting Letters of Administration and a death certificate. Self-custodied crypto in a private wallet can only be recovered if the family finds the seed phrase or private key. If the keys are lost, no court order can recover the asset, and the value is permanently gone.

How long does it take to access a deceased person's bank account in Florida?

Plan for several weeks at minimum. A bank will typically freeze a solely owned account upon notice of death and release funds only to a court-appointed personal representative. Summary administration for small estates is faster, while formal administration for larger or real-property-heavy estates commonly takes several months.

Should I list my account passwords or crypto keys in my will?

No. A will becomes a public court record once filed, so passwords and seed phrases should never appear in it. Instead, the will or trust should grant your representative authority over digital assets under Chapter 740 and reference a separate, secure method for storing access credentials.