What Is Probate in Miami, Florida?

Probate is the legal process through which a deceased person's estate is administered under court supervision. In Florida, probate is governed primarily by the Florida Probate Code, found in Chapters 731 through 735 of the Florida Statutes. The probate court validates the decedent's last will and testament, appoints a personal representative to manage the estate, ensures that creditors are paid, and oversees the distribution of remaining assets to the rightful beneficiaries or heirs. At the Law Offices of Albert Goodwin, PA, we guide families throughout South Florida through every stage of this process.

The Purpose of Probate

Probate serves several critical functions under Florida law:

• Authentication of the will. The court confirms that the will submitted is valid, was properly executed under Florida Statutes Section 732.502, and represents the decedent's true final wishes.
• Appointment of a personal representative. The court names a qualified individual or institution to take legal responsibility for the estate. This person collects assets, pays obligations, and distributes property.
• Protection of creditors. Florida law requires that known and reasonably ascertainable creditors receive formal notice of the probate proceeding. A Notice to Creditors is also published in a local newspaper, giving unknown creditors a limited window — typically three months — to file claims against the estate.
• Orderly distribution. Probate ensures that assets pass according to the decedent's will or, if there is no will, according to Florida's intestacy statutes.
• Resolution of disputes. Probate court provides a forum for resolving disagreements among beneficiaries, heirs, or creditors, including will contests and contested accountings.

How the Florida Probate Process Works

The probate process in Florida generally follows these steps:

1. Filing the Petition

Probate begins when an interested person — often the person named as personal representative in the will or a close family member — files a petition with the circuit court in the county where the decedent resided at the time of death. The original will, if one exists, must be filed with the court within ten days of learning of the death, as required by Florida Statutes Section 732.901.

2. Appointment of the Personal Representative

The court reviews the petition and the will, then issues Letters of Administration appointing the personal representative. These letters give the personal representative legal authority to act on behalf of the estate — opening estate bank accounts, communicating with financial institutions, and managing estate property.

3. Notification of Interested Parties and Creditors

The personal representative must provide formal notice of the administration to all known beneficiaries and heirs. A Notice to Creditors must be published in a newspaper in the county where the probate is pending. Known or reasonably ascertainable creditors must also receive direct written notice. Creditors then have three months from the first publication date (or 30 days from receipt of direct notice, whichever is later) to file their claims.

4. Inventory and Asset Management

The personal representative identifies, locates, and values all probate assets. Under Florida law, an inventory of estate assets must be filed with the court within 60 days of appointment. The personal representative must also manage, protect, and invest estate assets prudently during the administration.

5. Payment of Debts and Taxes

Legitimate creditor claims are evaluated and paid from estate funds. The personal representative is also responsible for filing the decedent's final income tax return and any required estate tax returns. Florida does not impose a state estate tax, but federal estate tax may apply to larger estates.

6. Distribution and Closing

After debts and expenses are settled, the personal representative distributes the remaining assets to the beneficiaries named in the will or to the heirs under Florida's intestacy laws. A final accounting is filed with the court, and the personal representative petitions for discharge, formally closing the estate.

Types of Probate in Florida

Formal Administration

Formal administration is the standard probate process used for estates valued at more than $75,000 (excluding exempt property) or when the decedent passed away less than two years ago. It involves full court oversight, creditor notification, and typically requires an attorney. Under Florida Statutes Section 733.212, the personal representative must serve a Notice of Administration on all beneficiaries and known heirs.

Summary Administration

Summary administration is a simplified, shorter form of probate available when the total value of the estate subject to probate (less exempt property) does not exceed $75,000, or when the decedent has been dead for more than two years. This process does not require appointment of a personal representative. Instead, the court issues an order directly distributing assets to the entitled parties. Summary administration is faster and less expensive, but it is not suitable for every situation — particularly where creditor claims are complex or disputed.

Disposition Without Administration

For very small estates, Florida law allows a disposition without administration under Section 735.301. This is available when the estate consists only of property that is exempt from creditor claims (such as personal property exempt under the Florida Constitution) and non-exempt assets that do not exceed the total of funeral expenses and the costs of the last 60 days of the decedent's medical care.

How Long Does Probate Take in Florida?

The timeline varies significantly based on the complexity of the estate:

• Summary administration: Typically completed within one to three months.
• Straightforward formal administration: Usually takes six months to one year. The mandatory three-month creditor period alone establishes a minimum timeline.
• Complex or contested estates: If beneficiaries dispute the will, if there are significant creditor claims, or if the estate includes difficult-to-value assets such as business interests, probate can take one to three years or longer.

How Much Does Probate Cost in Florida?

Probate costs in Florida include several components:

• Court filing fees: These vary by county but generally range from $300 to $400 for initial filings.
• Attorney fees: Florida Statutes Section 733.6171 provides a fee schedule that courts presume to be reasonable. For example, attorney fees are 3% of the first $1 million in estate value, 2.5% of the next $4 million, and 2% of the next $5 million, with lower percentages for larger estates. These are presumed reasonable — actual fees may be higher or lower depending on the complexity of the work involved.
• Personal representative compensation: Under Florida Statutes Section 733.617, the personal representative is entitled to a commission that follows a similar percentage-based schedule.
• Additional costs: Appraisal fees, accounting fees, publication costs for the Notice to Creditors, bond premiums, and miscellaneous administrative expenses may also apply.

Which Assets Go Through Probate?

Not all of a decedent's property goes through probate. Only assets that were owned solely by the decedent, without a built-in transfer mechanism, are considered probate assets. Common examples include:

• Real estate held solely in the decedent's name (unless it qualifies as protected homestead)
• Bank and investment accounts titled only in the decedent's name, with no payable-on-death or transfer-on-death designation
• Personal property such as vehicles, jewelry, furniture, and collectibles
• Business interests owned solely by the decedent

Which Assets Do Not Go Through Probate?

Certain assets pass outside of probate regardless of what the will says:

• Assets held in a trust. Property transferred to a revocable or irrevocable trust is distributed by the trustee according to the trust terms, without court involvement.
• Jointly owned property with right of survivorship. When one owner dies, the surviving owner receives the property automatically.
• Accounts with beneficiary designations. Life insurance policies, retirement accounts (IRAs, 401(k)s), and annuities pass directly to named beneficiaries.
• Payable-on-death and transfer-on-death accounts. Bank and brokerage accounts with POD or TOD designations transfer directly to the named individual.
• Tenancy by the entirety property. Assets held in this form of joint ownership between spouses pass automatically to the surviving spouse.

When Is Probate Required in Florida?

Probate is required in Florida whenever the decedent owned assets solely in their own name that do not have a beneficiary designation or other automatic transfer mechanism. Even if a valid will exists, that will must be admitted to probate before it has legal effect. A will alone does not transfer title to property — the probate process is necessary to carry out the will's instructions.

If the decedent owned real property in Florida but lived in another state, an ancillary probate may be required in Florida to transfer that property, in addition to probate proceedings in the decedent's home state.

Some families attempt to avoid probate through careful estate planning, using tools like revocable living trusts, beneficiary designations, and joint ownership arrangements. While probate avoidance is a legitimate planning goal, it requires proper setup during the owner's lifetime.

Contact a Florida Probate Attorney

Understanding probate is the first step in protecting your family and your assets. Whether you are planning ahead or facing the probate process after a loved one's passing, the Law Offices of Albert Goodwin, PA can help. We represent clients throughout Miami-Dade County, Broward County, and Palm Beach County in all aspects of Florida probate. Call us at 786-522-1411 or email [email protected] to schedule a consultation at our Coral Gables office.