Probate in Miami, Florida

When a person passes away in Florida, their assets typically must go through a legal process known as probate before they can be distributed to heirs and beneficiaries. Probate is the court-supervised procedure for identifying and gathering a decedent's assets, paying debts and taxes, and distributing the remaining property to the rightful beneficiaries. At the Law Offices of Albert Goodwin, PA, we represent personal representatives, beneficiaries, and families throughout the Florida probate process, helping them navigate the complexities of estate administration efficiently and in compliance with Florida law.

What Is Probate in Florida?

Probate is the legal process through which a deceased person's estate is properly administered and distributed. In Florida, probate serves several essential purposes:

Authenticating the decedent's last will and testament, if one exists
Appointing a personal representative (called an executor in some states) to manage the estate
Identifying, locating, and gathering the decedent's probate assets
Paying valid creditor claims, debts, and taxes owed by the estate
Distributing the remaining assets to beneficiaries according to the will or, if there is no will, according to Florida's intestacy statutes

Not all assets are subject to probate. Assets held in a revocable living trust, jointly owned property with rights of survivorship, assets with designated beneficiaries (such as life insurance policies, retirement accounts, and payable-on-death bank accounts), and certain other arrangements pass outside of probate. However, for assets titled solely in the decedent's name without a beneficiary designation, probate is generally required.

Florida's Probate Court System

In Florida, probate cases are heard in the Probate Division of the Circuit Court in the county where the decedent was domiciled at the time of death. Unlike New York, which uses a Surrogate's Court system, Florida's probate proceedings are handled within the broader circuit court structure. For residents of Miami-Dade County, probate cases are filed in the Probate Division of the Eleventh Judicial Circuit Court. The probate judge oversees the entire administration process, resolves disputes, and ensures compliance with the Florida Probate Code, found in Chapters 731 through 735 of the Florida Statutes.

If the decedent owned real property in a Florida county other than where they were domiciled, ancillary administration may be required in that county as well.

Types of Probate Administration in Florida

Florida law provides several types of probate proceedings depending on the size and complexity of the estate. Understanding which type applies to your situation is critical to ensuring the process is handled correctly and efficiently.

Formal Administration

Formal administration is the standard probate process in Florida and is required for estates valued at more than $75,000, or when the decedent has been dead for less than two years and the estate exceeds the summary administration threshold. Formal administration is governed by Florida Statutes Chapter 733 and involves the full appointment of a personal representative, formal notice to creditors, a claims period, accounting, and final distribution.

During formal administration, the personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries. They must file an inventory of estate assets, manage estate property prudently, pay valid claims and debts, file tax returns, and ultimately distribute assets according to the will or Florida intestacy law. Formal administration requires the involvement of an attorney; under Florida law (F.S. § 733.6171), the personal representative must be represented by a Florida attorney throughout the proceedings.

Summary Administration

Summary administration is a simplified probate process available in Florida under two circumstances, as set forth in F.S. § 735.201:

The total value of the estate subject to probate is $75,000 or less (excluding exempt property), or
The decedent has been dead for more than two years, regardless of the estate's value

Summary administration does not require the appointment of a personal representative. Instead, the court enters an order of summary administration directing distribution of assets to the entitled parties. This process is faster and less expensive than formal administration, but it may not be appropriate for every situation, particularly where there are disputed claims or complex asset structures. A petition for summary administration must still be filed by an attorney with the probate court, along with the decedent's will (if one exists) and a death certificate.

Disposition Without Administration

For very small estates, Florida provides a third option under F.S. § 735.301 known as disposition without administration. This procedure may be used when the decedent's assets in Florida consist only of property that is exempt from the claims of creditors (such as personal property exempt under Florida law) and non-exempt personal property that does not exceed the total of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the decedent's last 60 days of life. This is the simplest and quickest form of probate, but it applies only in limited circumstances.

The Florida Probate Process Step by Step

While every estate is unique, the general probate process in Florida follows these key steps:

Step 1: Filing the Petition

The probate process begins when an interested person (usually the person named as personal representative in the will, or a family member if there is no will) files a petition for administration with the Probate Division of the Circuit Court. The original will, if one exists, and a certified death certificate must be filed with the petition.

Step 2: Appointment of the Personal Representative

After reviewing the petition, the probate judge issues Letters of Administration, formally appointing the personal representative. This document grants the personal representative legal authority to act on behalf of the estate. The personal representative must also file a designation of a resident agent in Florida and an oath.

Step 3: Notice to Beneficiaries and Creditors

The personal representative must provide formal notice of the administration to all known or reasonably ascertainable creditors by mail, and must publish a Notice to Creditors in a local newspaper for two consecutive weeks. This publication triggers the creditor claims period.

Step 4: Inventory and Asset Gathering

Within 60 days of appointment, the personal representative must file an inventory of all probate assets with the court, including their estimated fair market values. The personal representative is responsible for locating, securing, and managing all estate assets during the administration.

Step 5: Creditor Claims Period

Under F.S. § 733.702, creditors have three months from the date of first publication of the Notice to Creditors to file their claims with the court. Known creditors who receive direct notice have 30 days from the date of service of the notice or three months from the first publication, whichever is later. Claims filed after the deadline are generally barred. The personal representative must evaluate each claim and either pay it, object to it, or negotiate a resolution.

Step 6: Payment of Debts, Expenses, and Taxes

After the creditor claims period expires, the personal representative pays all valid claims, administrative expenses, attorney fees, and any applicable taxes. If the estate does not have sufficient assets to pay all claims in full, Florida law establishes a priority order for payment under F.S. § 733.707.

Step 7: Distribution to Beneficiaries

Once all debts, claims, and taxes have been satisfied, the personal representative distributes the remaining estate assets to the beneficiaries as directed by the will, or according to Florida's intestacy laws (F.S. § 732.101 et seq.) if there is no valid will.

Step 8: Final Accounting and Closing

The personal representative files a final accounting with the court detailing all receipts, disbursements, and distributions. After the beneficiaries waive objections or the court approves the accounting, the court enters an order of discharge, releasing the personal representative from further duties and closing the estate.

Key Parties Involved in Florida Probate

Several parties play important roles in the Florida probate process:

Personal Representative: The individual or institution appointed by the court to administer the estate. In Florida, the personal representative performs the role known as an "executor" or "administrator" in other states. Under F.S. § 733.304, there are specific qualifications for who may serve, and non-resident personal representatives must be related to the decedent by blood, marriage, or adoption.
Beneficiaries and Heirs: The individuals or entities entitled to receive estate assets, whether by will or intestacy law. Beneficiaries have the right to receive notice of the administration and to challenge actions of the personal representative.
Probate Judge: The circuit court judge assigned to the Probate Division who oversees the administration, resolves disputes, and ensures the estate is administered according to law.
Creditors: Any person or entity to whom the decedent owed money at the time of death. Creditors must file timely claims to be paid from the estate.
Probate Attorney: Florida law requires that the personal representative be represented by an attorney during formal administration. The attorney advises the personal representative on their duties, prepares and files all court documents, and helps resolve any disputes that arise.

How Long Does Probate Take in Florida?

The length of the probate process in Florida depends on the type of administration and the complexity of the estate. Summary administration can sometimes be completed in as little as one to three months. Formal administration typically takes a minimum of five to six months due to the three-month creditor claims period, and many estates take between six months and one year to fully administer. Estates involving litigation or disputes, complex tax issues, business interests, or hard-to-locate assets may take significantly longer, sometimes several years.

Factors that can delay the probate process include:

Will contests or challenges to the personal representative's appointment
Disputes among beneficiaries over asset distribution
Contested creditor claims
The need to sell real property or business interests
Federal estate tax proceedings or audits
Missing or incomplete estate records

Costs of Probate in Florida

The costs of probate in Florida can include court filing fees, attorney fees, personal representative fees, accounting fees, appraisal costs, publication fees for the Notice to Creditors, and costs for any bonds required. Attorney fees and personal representative fees in Florida are governed by a statutory fee schedule under F.S. § 733.6171 and F.S. § 733.617, respectively, which are based on the compensable value of the estate:

$1,500 for estates up to $40,000
$2,250 for estates between $40,000 and $70,000
$3,000 for estates between $70,000 and $100,000
$3,750 for estates between $100,000 and $400,000 (3% of the first $1 million)
2.5% on the value between $1 million and $3 million
2% on the value between $3 million and $5 million
1.5% on the value between $5 million and $10 million
1% on the value exceeding $10 million

Both the personal representative and the attorney are entitled to these fee amounts, meaning the total cost of fees can be double the above schedule. Additional "extraordinary" fees may be awarded by the court for services beyond the ordinary scope of administration, such as involvement in litigation or complex tax matters.

Florida-Specific Probate Considerations

Homestead Property and Probate

Florida has unique and powerful homestead protections that significantly affect the probate process. Under the Florida Constitution (Article X, Section 4) and F.S. § 732.401, a decedent's homestead property is generally protected from forced sale by creditors and cannot be devised by will if the decedent is survived by a spouse or minor child. If the decedent is survived by a spouse and no minor children, the surviving spouse may elect to take a life estate in the homestead property (with the remainder passing to the decedent's lineal descendants) or may elect to take an undivided one-half interest as a tenant in common with the descendants.

The classification of property as homestead can have significant implications for estate planning and probate administration. Homestead property is not considered a probate asset and does not go through the normal probate distribution process, but the probate court must still determine homestead status and ensure proper transfer. Given the complexity of Florida homestead law, consulting an experienced estate planning and probate attorney is essential.

Exempt Property

Under F.S. § 732.402, certain property of the decedent is exempt from claims of creditors and passes directly to the surviving spouse or, if there is no surviving spouse, to the decedent's children. Exempt property includes:

Household furniture, furnishings, and appliances in the decedent's usual place of abode, up to a net value of $20,000
Two motor vehicles, not exceeding a gross vehicle weight of 15,000 pounds each, which were regularly used by the decedent or members of the decedent's immediate family
All qualified tuition programs and qualified ABLE accounts of which the decedent was the owner

A petition for determination of exempt property must be filed within four months of the date of service of the Notice of Administration.

Family Allowance

Florida law also provides a family allowance under F.S. § 732.403, which entitles the surviving spouse and the decedent's lineal heirs whom the decedent was obligated to support to a reasonable allowance of up to $18,000 during the administration of the estate. This allowance is intended to provide for the family's maintenance during the probate process and is payable from estate assets before other distributions, in addition to any other rights the family may have.

Elective Share

Under F.S. § 732.201, a surviving spouse has the right to claim an elective share equal to 30% of the decedent's elective estate, even if the will provides for less or nothing at all. The elective estate includes not just probate assets but also certain non-probate transfers, making this a complex calculation. The election must be filed within the earlier of six months after the date of service of the Notice of Administration or two years after the decedent's death.

How a Florida Probate Attorney Can Help

Probate in Florida involves strict statutory requirements, court deadlines, and fiduciary obligations. An experienced probate attorney can assist with every aspect of the process, including:

Filing the petition for administration and all required court documents
Advising the personal representative on their fiduciary duties and legal obligations
Identifying and gathering estate assets, including conducting title searches and asset investigations
Providing proper notice to creditors and handling creditor claims
Addressing homestead property determinations, exempt property claims, and family allowance petitions
Preparing estate inventories and accountings
Filing federal estate tax returns and Florida estate tax matters, if applicable
Resolving disputes among beneficiaries or between beneficiaries and the personal representative through estate litigation
Handling guardianship matters when a beneficiary is a minor or incapacitated person
Ensuring the estate is distributed efficiently and in compliance with Florida law

Whether you are a personal representative seeking guidance on your duties, a beneficiary concerned about the administration of an estate, or a family member who has recently lost a loved one and needs to understand the probate process, the Law Offices of Albert Goodwin, PA is here to help.

Contact a Florida Probate Attorney

If you need assistance with probate in Miami, Coral Gables, or anywhere in South Florida, contact the Law Offices of Albert Goodwin, PA. Our experienced probate attorneys can guide you through every step of the process, from filing the initial petition through final distribution and closing of the estate. We handle formal administration, summary administration, and all matters related to estate planning and estate litigation in Florida.

Call us at 786-522-1411 or email us at [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134. We look forward to helping you navigate the probate process with confidence.