Educational guide — not legal advice. Florida probate law is specific and changes over time. Consult a licensed Florida attorney about your situation.
The short answer
Yes. A will does not avoid probate in Florida. This is one of the most common and costly misunderstandings in estate planning.
Think of a will as a letter of instructions to the probate court: it says who should inherit and who should be in charge (the personal representative). But the court still has to open a probate case to validate the will, appoint the personal representative, pay debts, and transfer title to the heirs. The will tells the court how to distribute — it doesn’t tell the court to stay out of it.
If you want to keep assets out of probate, that happens through how the assets are titled, not through the will.
What still goes through probate (will or not)
Probate is generally required for assets owned in the deceased’s name alone, with no beneficiary designation or surviving co-owner:
- A bank account in the deceased’s name only, with no payable-on-death beneficiary
- A brokerage account with no transfer-on-death registration
- Real estate (other than protected homestead) titled solely in the deceased’s name
- A car or boat titled solely in their name
- Personal property of value
These pass according to the will — but only after going through the Florida probate process.
What skips probate entirely
Here’s the part people miss. These assets pass outside probate no matter what the will says, because the title or contract already names who gets them:
- Retirement accounts and life insurance with a named beneficiary
- Payable-on-death (POD) bank accounts and transfer-on-death (TOD) brokerage accounts
- Jointly owned property with right of survivorship or tenancy by the entirety (common between spouses)
- Assets in a funded revocable living trust
- Florida homestead passing to a surviving spouse or descendants (more below)
For many Florida families, these tools move the bulk of the estate outside probate — leaving only a small amount (or nothing) that actually needs the court.
Florida homestead: a special case
Florida’s constitutional homestead protection treats the primary residence differently. When homestead passes to a surviving spouse or descendants, it generally passes outside the normal probate administration and is shielded from most creditors. There’s usually still a court step to confirm the homestead status (a petition to determine homestead), but it’s not the full creditor-and-distribution probate that other assets go through. Florida homestead law is intricate — and it can even override what your will says about the house if you have a spouse or minor child — so it’s worth understanding before you rely on it. See Estate Planning in Florida.
The faster route: summary administration
Even when probate is required, it isn’t always the long version. Florida has two tracks:
- Formal administration — the full process, for larger or more complex estates.
- Summary administration — a faster, cheaper process available when the probate estate (excluding homestead) is $75,000 or less, or the person has been deceased more than two years (Fla. Stat. Chapter 735). No personal representative is appointed; the court enters an order distributing the assets.
If the estate qualifies, summary administration can wrap up in a few months for a fraction of the cost. See How Much Do Probate Lawyer Fees Cost in Florida?.
So why have a will at all?
If a will doesn’t avoid probate, what’s the point? Plenty:
- It names who inherits the assets that do go through probate (otherwise Florida’s intestacy law decides).
- It names your personal representative (and a backup).
- It names guardians for minor children — something no trust or beneficiary form can do.
- It catches anything you didn’t retitle or assign a beneficiary to.
A will is essential. It just isn’t a probate-avoidance tool — that’s a different job, done by trusts, beneficiary designations, and joint ownership.
How to actually avoid probate in Florida
If avoiding probate is your goal:
- Name beneficiaries on retirement accounts and life insurance, and keep them current.
- Add POD/TOD designations to bank and brokerage accounts.
- Hold property jointly with right of survivorship where appropriate (common for spouses).
- Consider a funded revocable living trust — especially if you own real estate beyond the homestead, or property in more than one state (snowbirds, take note: a trust avoids a second “ancillary” probate).
- Consider an enhanced life estate (“Lady Bird”) deed for real estate — recognized by Florida courts, it passes property at death without probate while you keep full control during life. (Florida does not have a standard statutory TOD deed.)
See How to Avoid Probate in Florida for the full menu.
The honest takeaway
A will does not get you out of probate in Florida — it directs probate. If you want to keep assets out of court, do it through titling: beneficiary designations, joint ownership, a funded living trust, and Florida’s homestead protections. Keep the will too, because it names your personal representative, your beneficiaries for anything left, and guardians for your kids. The smart Florida plan uses both: a will for direction, and titling to minimize what actually has to go through the court.
Common questions
Does a will avoid probate in Florida?
No. A will tells the probate court how to distribute assets; it doesn’t skip the court. Avoiding probate is done through beneficiary designations, joint ownership, a living trust, and homestead — not the will.
What happens if there’s no will in Florida?
The estate still goes through probate, but Florida’s intestacy statute (rather than your wishes) decides who inherits. See How Long Does Probate Take in Florida Without a Will?.
Can a small estate skip formal probate in Florida?
Often yes — summary administration is available for estates of $75,000 or less (excluding homestead) or when the person died more than two years ago. It’s faster and cheaper than formal administration.
Does the house have to go through probate in Florida?
Not always. Protected homestead passing to a spouse or descendants generally avoids normal probate (though a court order confirming homestead is common). Other real estate titled solely in the deceased’s name does go through probate unless held in a trust or with survivorship.
How long do you have to file a will in Florida after death?
Florida law requires the custodian of the will to deposit it with the clerk of court within 10 days of learning of the death (Fla. Stat. §732.901). That’s a filing deadline, not the same as opening probate — but holding onto a will instead of depositing it can create legal liability. Don’t sit on the original will.
What if the will leaves everything to one person — is probate still needed?
Usually yes, if the assets are titled in the deceased’s name alone. The will tells the court who inherits, but the court still has to transfer title through probate. If that sole beneficiary is also the only interested person, the process can be simpler, but it’s still a court proceeding.
Related reading
- How Much Do Probate Lawyer Fees Cost in Florida?
- How Long Does Probate Take in Florida Without a Will?
- Estate Planning in Florida: The Complete Guide
- How to Avoid Probate in Florida
- What Is Probate and How Does It Work?
Educational information only — not legal advice. Florida probate and homestead law is intricate and changes; confirm your specific situation with a licensed Florida attorney. Sources: Fla. Stat. Chapters 732, 733, 735; Florida Constitution Art. X §4 (homestead); The Florida Bar.