Many Florida families sign a will and assume the job is done. They believe that having a will means their loved ones will not have to deal with court after they die. Unfortunately, that is one of the most common misunderstandings in estate planning. A will is important, but it does not keep your property out of probate.
This guide answers the question “does a will avoid probate in Florida” in plain language. It explains what probate is, how the probate process works with a will, how long it takes, which assets pass outside of probate, and the practical ways to avoid probate so your family can settle your affairs faster and with less cost.
Quick answer: No. A will does not avoid probate in Florida. A will is the set of instructions the probate court follows, so any property in your name alone must still go through probate before it reaches your beneficiaries. To avoid probate, assets need to pass another way: through a funded revocable living trust, a Lady Bird deed, joint ownership with right of survivorship, or a payable on death or transfer on death beneficiary.
What Is Probate in Florida?
Probate is the court supervised process for settling a person’s estate after death. The court confirms that the will is valid, appoints a personal representative (Florida’s term for an executor), gives creditors a chance to file claims, and then authorizes the personal representative to pay debts and distribute what remains to the beneficiaries.
Probate exists to make sure property is transferred to the right people and that valid debts are paid. The problem for families is that it takes time, costs money, and becomes part of the public record. The Florida probate process applies to any asset titled in the deceased person’s name alone that has no beneficiary and no surviving co-owner.
Does a Will Have to Go Through Probate?
Yes. In Florida, a will has no legal power to transfer property until a probate court admits it. Florida law requires anyone holding the original will to deposit it with the clerk of court in the county where the person lived within 10 days of learning of the death. From there, the will guides the court, but the court still supervises the process.
Think of it this way: a will decides who receives your property. Probate is how that property gets to them. Having a will does not avoid probate. It simply makes sure probate follows your wishes instead of Florida’s default intestacy rules.
Will vs. Probate: What Is the Difference?
| Will | Probate | |
|---|---|---|
| What it is | A document you sign during life | A court process after death |
| What it does | Names beneficiaries, a personal representative, and a guardian for minor children | Validates the will, pays debts, and transfers assets |
| Who controls it | You, while you are alive | The court and the personal representative |
| Public or private | Private until filed | Public record |
A will is still essential, especially for naming a guardian for minor children, and it should be signed correctly. A Florida wills attorney can make sure yours holds up. If you are unsure whether a homemade will is valid, the guide on whether handwritten wills are valid in Florida explains the signing rules.
How to Probate a Will in Florida: The Process With a Will
Here is how the probate process with a will typically works in Florida:
- File the original will. The original will is deposited with the clerk of court in the county where the person lived.
- Petition the court. The person named as personal representative files a petition to open the estate. Florida generally requires the personal representative to be represented by an attorney.
- Admit the will and appoint the personal representative. The court admits the will and issues Letters of Administration giving the personal representative legal authority to act.
- Notify creditors. A notice to creditors is published in a local newspaper, and known creditors are served directly. Most creditors have 3 months from the first publication to file claims.
- Notify beneficiaries. A notice of administration is sent to the beneficiaries and the surviving spouse.
- Inventory the estate. The personal representative lists and values the probate assets, usually within 60 days of appointment.
- Pay debts, expenses, and taxes. Valid claims and final expenses are paid from the estate.
- Distribute and close. After the creditor period ends and accountings are settled, the personal representative distributes the remaining assets and asks the court for discharge.
Depending on the size of the estate, this happens through a full formal administration or a simpler summary administration. Summary administration is generally available when the probate assets, not counting exempt property and protected homestead, are worth $75,000 or less, or when the person died more than two years ago.
How Long Does Probate Take in Florida With a Will?
Even with a valid will, Florida formal probate usually takes 6 to 18 months. The 3 month creditor period alone means very few estates close in under 5 or 6 months. Real estate that must be sold, disputes among family members, or missing heirs can push the timeline past two years. Summary administration is faster, often a matter of weeks to a few months.
Probate also costs money. Under Florida’s fee guideline, attorney fees for the personal representative are roughly 3% of the estate’s value, so a $400,000 estate can see about $12,000 in attorney fees, plus court costs and other expenses. The full timeline is broken down in how long probate takes in Florida.
Non-Probate Assets: What Passes Outside of Probate?
Not everything you own goes through probate, even if you have a will. Non probate assets pass directly to a named person or co-owner by law or by contract, and your will has no control over them.
| Non-Probate Asset | How It Passes |
|---|---|
| Property in a revocable living trust | Your successor trustee transfers it under the trust terms |
| Real estate with a Lady Bird deed | Passes to the named beneficiaries at death |
| Joint ownership with right of survivorship | Passes automatically to the surviving co-owner |
| Tenancy by the entirety (married couples) | Passes automatically to the surviving spouse |
| Payable on death accounts | Bank pays the named beneficiary |
| Transfer on death accounts | Brokerage re-registers the account to the beneficiary |
| Life insurance and retirement accounts | Paid to the named beneficiary |
Joint Ownership With Right of Survivorship
When two or more people own property as joint tenants with right of survivorship, the survivor automatically becomes the owner when one dies, without probate. In Florida, bank accounts held in two names are generally presumed to carry survivorship rights unless the account says otherwise. Real estate is different: a Florida deed must clearly state the right of survivorship, or the owners are treated as tenants in common, and each share goes through probate. Married couples who own real estate together are usually treated as tenants by the entirety, which also passes to the survivor.
Joint ownership is simple, but it has real risks. Adding a child to your deed or account can expose the property to that child’s creditors or divorce, can count as a gift, takes away your sole control, and can leave other children out. It also only delays probate until the last owner dies.
Payable on Death and Transfer on Death Accounts
Payable on death accounts (for bank accounts) and transfer on death accounts (for brokerage and investment accounts) let you name a beneficiary who receives the account directly at death. You keep full control during life, and the beneficiary has no rights until you die. The details are explained in POD vs TOD accounts in Florida, and keeping these designations aligned with your plan is covered in how beneficiary designations work in Florida.
How to Avoid Probate in Florida
If your goal is to keep your family out of court, these are the most common ways to avoid probate in Florida:
1. Create and Fund a Revocable Living Trust
A revocable living trust is the most complete way to avoid probate. You transfer your home and accounts into the trust, keep full control during life, and name a successor trustee to manage and distribute everything after your death, privately and usually within weeks to a few months. The trust only works for assets you actually move into it, so funding is essential. The checklist in how to fund a revocable living trust in Florida walks through each step.
2. Use a Lady Bird Deed for Your Home
A Lady Bird deed lets your Florida home pass directly to the people you name at death, while you keep full control and your homestead exemption. Married homeowners should know that Florida homestead rules still apply, which is explained in Florida homestead law and estate planning.
3. Add Beneficiaries to Every Account
Name payable on death or transfer on death beneficiaries on bank and investment accounts, and keep life insurance and retirement account beneficiaries up to date.
4. Use Joint Ownership Carefully
Joint ownership with right of survivorship can work for spouses, but it is usually not the best choice for passing property to children because of the risks above.
5. Keep a Pour-Over Will as a Backup
Even with a trust, you still need a short pour-over will to catch anything left outside the trust and to name a guardian for minor children. The guide on do I need a will if I have a trust in Florida explains why.
For a deeper look at every strategy, the full guide on how to avoid probate in Florida compares each option side by side.
Revocable Living Trust vs. Will: Which Avoids Probate?
| Question | Will | Revocable Living Trust |
|---|---|---|
| Avoids probate? | No | Yes, for funded assets |
| Typical time for family to receive assets | 6 to 18 months or longer | Often weeks to a few months |
| Public or private | Public once filed | Private |
| Helps if you become incapacitated | No | Yes |
| Names a guardian for minor children | Yes | No (use a pour-over will) |
| Up front cost | Lower | Higher |
So, does a living trust avoid probate? Yes, as long as it is properly funded. The full comparison, including costs and drawbacks, is in will vs. trust in Florida, and the guide on putting your house in a trust in Florida covers the most important asset to move.
Estate Planning and Probate: Putting It All Together
Most Florida families do best with a coordinated plan rather than a single document. A typical plan might include a revocable living trust holding the home and investment accounts, payable on death beneficiaries on bank accounts, updated life insurance and retirement beneficiaries, a pour-over will, a durable power of attorney, and healthcare documents. When everything works together, there is little or nothing left for probate. An experienced Florida estate planning attorney can review what you own and how it is titled, and show you which assets would go through probate today.
Frequently Asked Questions
Does a will avoid probate in Florida?
Does having a will avoid probate if my estate is small?
How long does probate take in Florida with a will?
How do you probate a will in Florida?
Does a living trust avoid probate in Florida?
What are non-probate assets?
Does joint ownership with right of survivorship avoid probate?
Do payable on death accounts go through probate?
What are the best ways to avoid probate in Florida?
If I have a trust, do I still need a will?
Work With a Florida Estate Planning Attorney
A will is an important first step, but on its own it leaves your family facing months of probate. If you are already handling a loved one’s estate, our probate services can guide you through either summary administration or formal administration, and the comparison of probate vs. trust administration shows how much simpler a trust can make things.
Attorney Yanitza Schoonover builds plans that keep Florida families out of court, combining a properly funded revocable living trust, a Lady Bird deed for the home, and coordinated beneficiary designations, while planning ahead for Medicaid estate recovery. You can contact the firm to find out which of your assets would go through probate today.
Call (305) 299-7496 or email info@estateplanningattorney.us to schedule a free initial consultation. Phone and Zoom appointments are available Monday through Sunday, 8:00 AM to 9:00 PM.
The Schoonover Law Firm, P.A. | 6303 Waterford District Drive, Suite 400, Miami, FL 33126 | Florida Bar #124081
