What Assets Must Go Through Probate in Florida (and What Skips It)

In Florida, an asset goes through probate when it was owned in the decedent’s name alone, with no surviving co-owner and no valid beneficiary or transfer-on-death designation directing where it goes. Assets that already carry a built-in path to a new owner, such as life insurance with a named beneficiary, jointly titled property with survivorship rights, or anything held in a living trust, generally skip probate entirely. The practical question for most families is not whether any probate is needed, but how much of the estate is exposed to it and whether the case qualifies for a streamlined process.

Why “what goes through probate” is the first question to answer

When a loved one dies, families often assume that having a will means avoiding court. The opposite is closer to the truth. A will is the instruction manual for probate; it does not bypass it. Probate is the court-supervised process that retitles the decedent’s individually owned assets, pays valid debts, and distributes what remains.

So before you worry about forms, deadlines, or hiring counsel, you need to sort the estate into two buckets: assets that fall into probate and assets that pass automatically by their own terms. That single sorting exercise usually tells you what kind of case you have, sometimes a full formal administration, sometimes the much faster summary administration, and occasionally no probate at all.

This distinction matters even more in Palm Beach County, where many estates consist of a homestead, a brokerage account, and a couple of bank accounts. How those three things are titled can be the difference between a six-week summary case and a six-month formal one.

Assets that typically must go through Florida probate

The common thread is sole ownership with no override. If the decedent held it alone and nothing tells the asset where to go next, the court has to step in. Probate assets commonly include:

• Individually owned bank and credit union accounts with no payable-on-death (POD) beneficiary.
• Brokerage and investment accounts titled solely in the decedent’s name without a transfer-on-death (TOD) registration.
• Real estate owned individually, or owned with another person as tenants in common, where the decedent’s fractional share does not pass by survivorship.
• Vehicles, boats, and other titled personal property registered only to the decedent.
• Business interests, such as a sole proprietorship or a membership interest in an LLC, that aren’t governed by a buy-sell or operating-agreement transfer provision.
• Personal effects of value, including jewelry, art, and collectibles, that have no separate title or designation.
• A life insurance policy or retirement account payable to “the estate,” or where every named beneficiary has predeceased and no contingent is listed.

That last item trips people up constantly. A 401(k) or IRA is normally a non-probate asset, but if the beneficiary form is blank, outdated, or names the estate, the proceeds flow back into probate. The same goes for a life insurance death benefit with no living beneficiary.

Florida’s small-estate options for probate assets

Not every probate estate requires the full formal process. Florida law provides two lighter paths, and they are central to how we handle most cases at our Boca Raton practice:

• Summary administration under Florida Statutes Chapter 735 is available when the value of the probate estate (excluding exempt property such as the homestead) is $75,000 or less, or when the decedent has been dead for more than two years. There is no personal representative appointed; instead, the court enters an order distributing the assets directly.
• Disposition of personal property without administration, an even smaller process, lets a family recover a modest estate without a formal proceeding, typically when the only assets are exempt property plus non-exempt personal property worth no more than the final illness and funeral expenses.

The two-year rule deserves emphasis. Once two years have passed since death, summary administration becomes available regardless of estate value, because the creditor period under Florida Statutes Chapter 733 has run. We see this often with a homestead that nobody retitled years ago.

Assets that skip Florida probate entirely

Non-probate assets transfer the moment of death by operation of law or contract. No judge signs off; the institution simply moves the asset to the next owner upon receiving a death certificate and the right paperwork.

1. Assets with a named beneficiary

Life insurance, annuities, IRAs, 401(k)s, and other retirement accounts pay directly to the beneficiary named on the contract. The will is irrelevant to these assets. If your will leaves “everything to my children” but your IRA still names your ex-spouse, the ex-spouse wins. Beneficiary forms control.

2. Payable-on-death and transfer-on-death accounts

A POD designation on a bank account and a TOD registration on a brokerage account accomplish the same goal: the funds pass to the named person without probate. Florida fully recognizes these designations, and they are one of the cheapest, cleanest planning tools available. The account stays fully in your control during life and converts to the beneficiary at death.

3. Jointly held property with right of survivorship

Property held as joint tenants with right of survivorship or, between spouses, as tenancy by the entirety passes automatically to the surviving owner. A married couple’s home titled as tenants by the entirety, a joint checking account, a co-owned car, none of these touch probate while one spouse survives. Be careful, though: ordinary “tenancy in common” carries no survivorship, so a tenant-in-common share is a probate asset.

4. Florida’s enhanced life estate deed (the “Lady Bird” deed)

Florida is one of the few states that recognizes the enhanced life estate deed, commonly called a Lady Bird deed. It lets an owner keep full control of real estate during life, including the right to sell or mortgage, while naming a remainder beneficiary who takes title automatically at death. Done correctly, it moves a homestead out of probate without giving up homestead tax benefits. It is one of the most useful tools we use for clients whose main asset is the house.

5. Property held in a revocable living trust

Assets properly titled in the name of a revocable living trust avoid probate because, legally, the trust owns them, not the decedent. The catch is funding. A trust only avoids probate for assets actually retitled into it; an unfunded trust accomplishes nothing. We routinely see trusts that were drafted and signed but never funded, leaving the very assets they were meant to protect sitting in probate.

The Florida homestead: a category of its own

Few things confuse families more than the Florida homestead. Constitutionally protected homestead property is not a probate asset in the ordinary sense; it descends to heirs under Article X, Section 4 of the Florida Constitution and is protected from most creditors. But a court order is often still needed to confirm the homestead status and clear title for the heirs.

So the homestead can require a probate filing, a petition to determine homestead, while remaining outside the reach of creditors and outside the $75,000 cap for summary administration. If you’re trying to figure out whether your parent’s house in Boca Raton triggers probate, that nuance is exactly why a quick consultation pays for itself. You can reach our office to walk through the title.

A simple way to map your own estate

You don’t need a law degree to estimate whether probate is coming. Pull each significant asset and ask three questions in order:

1. Is there a living co-owner with survivorship rights? If yes, it passes to them, no probate.
2. Is there a valid beneficiary, POD, or TOD designation? If yes, it pays out by contract, no probate.
3. Is it titled in a funded trust or covered by a Lady Bird deed? If yes, it transfers under those terms, no probate.

If the answer to all three is no, the asset is almost certainly a probate asset, and the total value of those leftover assets tells you whether you’re looking at summary administration or a full formal case. Our editorial focus on small-estate and summary cases reflects what we see most: estates where careful titling means only one or two assets ever reach the courthouse.

How this compares in other states

The probate-versus-non-probate framework is national, but the thresholds and procedures vary considerably. New York, for example, runs a different small-estate and proceeding structure. If your family is dealing with property or a decedent connected to New York, it helps to understand how that state handles a and the fact that there are depending on estate size and whether a will exists. Cross-state estates, where someone owns a condo in Boca and a co-op in Manhattan, often require ancillary administration, and coordinating the two is its own discipline.

For Florida-specific matters, our colleagues at the firm’s handle formal and summary administrations across the state. And if you’re earlier in the process, putting together or updating your will and core documents is the single best way to control what ends up in probate later.

The bottom line for Boca Raton families

Probate in Florida is not a punishment for failing to plan; it’s simply the default for individually owned assets that lack a built-in successor. The estates that move fastest are the ones where most assets carry beneficiary designations, joint titling, or trust ownership, leaving little for the court to do. The estates that bog down are the ones with a stray solo account, a stale beneficiary form, or a house no one retitled.

If you can sort your assets into the two buckets above, you already know roughly what kind of case you have. From there, the goal is matching the estate to the lightest lawful process, often Florida summary administration, and clearing title cleanly so the family can move on.

Frequently Asked Questions

Does having a will avoid probate in Florida?

No. A will does not avoid probate; it directs how probate assets are distributed and names who should serve as personal representative. Probate is still required for any asset the decedent owned individually without a beneficiary designation, survivorship co-owner, or trust ownership. To avoid probate, you must use non-probate tools such as POD/TOD designations, joint titling with survivorship, a Lady Bird deed, or a funded revocable trust.

What is the small-estate threshold for summary administration in Florida?

Under Florida Statutes Chapter 735, summary administration is available when the value of the probate estate, excluding exempt property like the homestead, is $75,000 or less. It is also available regardless of value once the decedent has been dead for more than two years, because the creditor claim period has expired by then.

Do retirement accounts and life insurance go through probate in Florida?

Usually not. IRAs, 401(k)s, annuities, and life insurance pay directly to the named beneficiary and skip probate. They only fall into probate if the beneficiary designation is blank, names the estate, or lists only beneficiaries who have already died with no living contingent named. Keeping beneficiary forms current is the simplest way to keep these assets out of probate.

Is the Florida homestead a probate asset?

The homestead is constitutionally protected and descends to heirs outside ordinary probate and outside the reach of most creditors. However, a probate filing, specifically a petition to determine homestead status, is often still needed to confirm the protection and clear title so the heirs can sell or refinance. Its value does not count toward the $75,000 summary administration cap.

What is a Lady Bird deed and does it avoid probate?

A Lady Bird deed, or enhanced life estate deed, is a Florida tool that lets a property owner keep full control during life, including the right to sell or mortgage, while naming a remainder beneficiary who automatically takes title at death. Because title passes by the deed’s own terms, the property avoids probate while preserving the owner’s homestead tax benefits during life.