What Assets Must Go Through Probate In Florida?

If a loved one has recently passed away, you may be wondering what happens to everything they owned. Does it all have to go through probate? The short answer is: not necessarily. Florida law draws a clear line between assets that must pass through the probate process and those that can transfer directly to beneficiaries. Understanding that distinction can make a real difference in how smoothly an estate is settled.

How Florida Defines Probate Assets

Probate is the court-supervised process of distributing a deceased person’s individually owned assets. Under Florida Statutes Chapter 733, probate applies to assets that were owned solely by the deceased person and that have no built-in mechanism for transferring to someone else automatically. In other words, if there is no named beneficiary, no joint owner with survivorship rights, and no trust holding the asset, then that asset is almost certainly a probate asset.

Common examples of assets that typically must go through probate include:

• Real estate titled solely in the deceased person’s name, with no co-owner and no enhanced life estate deed (sometimes called a “Lady Bird deed”)
• Bank accounts held only in the deceased person’s name without a payable-on-death (POD) designation
• Investment and brokerage accounts without a transfer-on-death (TOD) beneficiary
• Personal property such as vehicles, jewelry, art, and household items that were solely owned
• Business interests held individually, without a succession mechanism in place
• Any other individually owned asset where no beneficiary designation or joint title exists

It is worth noting that probate in Florida can be time-consuming and expensive. The process typically takes 9 to 12 months to complete, and the cost can average 5 to 6 percent of the estate’s value.

What Assets Generally Avoid Probate

Not everything a person owns at death has to pass through the probate court. Several categories of assets transfer outside of probate entirely. Life insurance proceeds paid to a named beneficiary pass directly to that person under Florida Statute section 733.808. Retirement accounts such as IRAs and 401(k)s with a living named beneficiary transfer the same way. Bank accounts with POD designations and investment accounts with TOD designations pass directly under Florida Statute sections 655.82 and 711.50 et seq. Property held in a revocable living trust also avoids probate, as do assets owned jointly with rights of survivorship.

The critical point is this: a beneficiary designation or titling arrangement can override whatever a will says. If an account lists one person as the beneficiary but the will says something different, the beneficiary designation wins.

Why the Distinction Matters for Your Planning

Knowing which of your assets would go through probate is an essential first step in estate planning. Many people are surprised to discover that having a will does not automatically keep an estate out of probate. A will only controls probate assets. Assets that pass by beneficiary designation, joint ownership, or trust go around the will entirely.

If your goal is to minimize the time, cost, and public exposure that come with probate, it is worth taking stock of exactly how your assets are titled and whether your beneficiary designations are current. Outdated designations or assets left in someone’s sole name by accident are among the most common reasons estates end up in probate unnecessarily.

Speak with a Florida Probate Attorney About Your Situation

Probate law in Florida can be more nuanced than it appears, and small details in how assets are titled can have significant consequences for your family. We at Millhorn Elder Law Planning Group encourage you to take a proactive look at your estate plan before probate becomes necessary. If you are settling a loved one’s estate or want to plan ahead to protect your own assets, our The Villages probate attorneys are here to help. The Villages probate lawyers at Millhorn Elder Law Planning Group are committed to guiding families through this process with care and clarity. Contact us today to schedule a consultation.

Sources:

flsenate.gov/Laws/Statutes/2023/Chapter733/All

zoeckleinlawpa.com/assets-exempt-from-probate-florida/