Table of Contents – The Complete Guide to Florida Probate

1. What is Probate?
2. What Property and Assets go Through Probate in Florida?
3. Probate Jurisdiction in Florida
4. Out of State Decedents and Ancillary Administration
5. What is a Valid Will in Florida?
6. What Happens When You Die in Florida Without a Will?
7. Creditor’s Claims in Florida Probate Cases
8. Exempt Property
9. Homestead Property in Florida Probate
10. Summary Administration
11. Formal Administration
12. Personal Representatives in Florida Probate
13. What Does a Florida Probate Lawyer Do?
14. How Much Does Probate Cost in Florida?
15. How long Does Probate Take in Florida?
16. Avoiding Probate in Florida
17. What Happens to a Child’s Inheritance in Florida?
18. Inheritances and Government Benefit Eligibility for Disabled Individuals
19. Probate Litigation
20. Florida Probate for Florida Wrongful Death Cases

What is Probate?

Probate, also called “Estate Administration,” is a court process that transfers assets owned by a deceased person to living people. When someone dies in Florida the things they own go to their family or, if they have a will, to the beneficiaries named in that document. In probate, the person who died is referred to as the “decedent.” Anything that the decedent owned when they died is collectively referred to as the “estate.” An estate can contain bank accounts, real estate, vehicles, guns, tools, jewelry, or any other item owned at the time of death. If a decedent had a valid will, that document directs who will be in charge of the probate process and who will receive the decedent’s assets upon their death. If a person did not have a will, their estate will be divided among their next of kin (the intestate heirs) as described in section 6 of this guide.

For city-specific guidance, see our comprehensive guides for Tampa Probate and Fort Lauderdale probate.

Probate is needed even when a decedent has a valid will. When someone dies with a will, a probate judge must “admit the will” to probate by finding that the will is valid, as described in section 5 of this guide. The probate judge can only transfer property according to the will after the estate is opened in court.

In legal terms, “beneficiaries” are people named in a will, and “heirs” are the next of kin who receive property in the absence of a will. Whether a decedent died with or without a will, the court’s priority is to ensure that the correct beneficiaries/heirs are identified to receive property.

There are two types of probate administration in Florida, formal administration and summary administration. Summary administration is a more simple process, while formal administration is required for certain estates that need the services of a personal representative or are too large for summary administration. The differences between these two types of probate proceedings are outlined in sections 10 and 11 of this guide.

When the beneficiaries or heirs of the decedent’s estate are identified and the correct probate documents are submitted to the court, the judge will sign orders allowing property to be transferred. Prior to property being distributed, the probate judge must be satisfied that all interested parties have received proper notice, that eligible estate creditors have been paid, and that any disputes among the beneficiaries are resolved.

Chapters 731-735 of the Florida Statutes contain the probate laws for our state, however each county in Florida has specific requirements that must be met before the probate court will allow a case to move forward. The Covid-19 pandemic changed the way that many probate courts operate, and most judges have transitioned to holding hearings by video conference. While the pandemic has ended, most Florida Judges continue to hold hearings via Zoom in the majority of their cases. Florida Probate Law Group has experience navigating the estate administration process in every Florida county in order to efficiently secure court orders.

What Property and Assets Go Through Probate in Florida?

Any asset owned by a decedent is subject to probate in Florida. The exception to this rule is property that had a named beneficiary or rights of survivorship. Examples of property that may have a named beneficiary would be a life insurance payout, a retirement account, or a bank account with a “pay on death” designation. An example of property with rights of survivorship would be real estate that has a deed indicating that a surviving co-owner will take the full ownership interest of the decedent upon their death. Property purchased by a husband and wife typically has rights of survivorship in Florida, even if that specific language does not appear on the deed to the property. This type of survivorship is called “tenancy by the entirety,” and only requires that title be held by husband and wife, in which case, title will automatically transfer to the survivor upon the death of one spouse.

If an asset does not have a named beneficiary or rights of survivorship, it will have to go through probate to change ownership pursuant to the Florida Probate Rules (2026). The most common assets that go through this process are bank accounts, real estate, vehicles, and personal property. In order to determine if a specific financial account is subject to probate, the financial institution should be contacted. In order to determine if real estate is subject to probate, an attorney should examine the deed to the property. Attorneys at Florida Probate Law Group provide free deed examinations, and can often retrieve deeds from the property records electronically. Call us at (352) 354-2654 if you have questions about property that may be subject to probate.

Probate Jurisdiction in Florida

The venue of a probate case is controlled by Florida Statute section 733.101. If a decedent was a Florida resident, their probate case must be filed in the county where they lived when they were alive. For an out of state resident, a probate case can be filed in a county where the decedent owned property. Probate cases are handled by circuit courts pursuant to Article V Section 20(3) of the Florida Constitution. Florida courts can only transfer property located within the state of Florida. Furthermore, a probate court only has jurisdiction over property that was owned by the decedent. However, a circuit court may freeze assets that are suspected to have belonged to the decedent until legal ownership is determined. Perez v. Lopez, 454 So. 2d 777 (Fla. 3d DCA 1984).

When completing probate in Florida, it is not typically necessary for clients to physically come to court. When hearings are necessary, clients can generally participate through video or telephone conference. If you have specific questions about a probate case in Florida, click here to get in touch with Florida Probate Law Group.

If you need probate assistance in Florida’s major cities, our experienced attorneys serve Tampa, Fort Lauderdale, Lakeland, Port St. Lucie, Cape Coral, and Palm Coast with transparent $3,500 flat-fee pricing.

Out of State Decedents and Ancillary Administration

Because Florida is a popular state for vacations, many people own property here without being residents of the state. Furthermore, many people that move to Florida may continue to own property in the state where they are originally from.

For individuals that own property in multiple states, multiple probate administrations must be completed. In the state where the decedent lived, a “domiciliary” probate case will be filed. Next, an “ancillary” probate case is filed in the state where they owned property but were not a resident. Lawyers in each state will coordinate with each other to ensure that all of the decedent’s property is accounted for and legally transferred to their beneficiaries or heirs.

Ancillary probate administrations are common in Florida, and are governed by Florida Statute section 734.102. Florida Probate Law Group is experienced in multi-state probate administrations, and we are happy to answer any specific questions that you may have regarding this process. If you have questions about this Florida probate guide, call us at (352) 354-2654.

What is a Valid Will in Florida?

A will is a document that determines who receives a decedent’s property when they pass away. Florida law requires that a will must be signed by the testator (the person writing the will) and two witnesses to be enforceable. The testator must either sign in front of the witnesses or tell the witnesses that he or she previously signed the will. The witnesses must sign together in the presence of each other and in the presence of the testator. The rules for the execution of wills are found in Florida Statute 732.502.

It is not necessary for a will to be notarized for the document to be valid, however, notarized wills are preferred because they are easier to admit to probate court. A notarized will is referred to as a “self proved will.” When a will is not notarized, a witness to the will must make a statement to the probate court confirming that they witnessed the will. When a will is notarized, a witness statement is not required. Therefore, it is a best practice to have wills notarized whenever possible. The rules for self proved wills are found in Florida Statute 732.503.

If you need to create a will or submit a will to probate, call Florida Probate Law Group at (352) 354-2654. Our Gainesville, FL probate lawyers work in every Florida Jurisdiction.

What Happens When You Die in Florida Without a Will?

When a person dies without a will, their assets go to their spouse and/or closest relatives. Florida Statute sections 732.102 and 732.103 specifically determine how a decedent’s property is divided when they die without a will under the 2026 Florida Probate Rules. This process is referred to as intestate succession. Our flowchart below breaks down the intestate succession rules depending on what relatives the decedent left behind:

Download 2026 Intestate Succession Flowchart

To talk with a lawyer about the specifics of your probate case, click here. Our Gainesville, Florida based probate firm works in every Florida County.

Creditor’s Claims in Florida Probate Cases

Providing for the payment of creditors claims is part of the probate process. You should not pay debts of a decedent without consulting with a probate attorney, because not all debts are eligible for payment. Furthermore, you should never use your own money to pay the debts of a decedent. For decedents that died more than two years prior to their estate going through probate, no debts should be paid because all claims are barred pursuant to Florida Statute section 733.710. The two year limitation on creditor’s claims does not apply to mortgages on real estate.

The process for handling estate debts is different depending on the type of probate administration you will be using. In a summary administration, all known debts are required to be paid from eligible, non-exempt assets of the decedent when those exist. The next section of this guide discusses which assets are exempt from creditors and which assets are available to creditors.

In a formal administration, creditors receive notice of the estate administration and must file claims in a timely manner in order to be eligible for repayment. A “notice to creditors” is filed in a newspaper in the county where the decedent lived, alerting potential creditors that they have 90 days to file a claim in the probate case to be eligible for repayment. Known creditors are sent a copy of that newspaper filing and given 30 days to file a claim. If a claim is not filed within the allotted time, the claim is waived. When claims are filed in a formal estate administration, the personal representative has the ability to object to the claim if they do not believe it is a valid debt. If a decedent had numerous creditors, formal administration can be beneficial in avoiding the payment of debtors who do not comply with the claim process. Florida Statute section 733.2121 sets out the rules for notices to creditors in formal administrations.

If you have questions about estate debts, call Florida Probate Law Group at (352) 354-2654.

Exempt Property

When a decedent has a spouse or children, some assets, including the decedent’s homestead property, two vehicles, household furnishings, and up to $1,000.00 in personal property are exempt from creditor’s claims and should not be used to pay debts. Florida Statute section 732.402 and Section 10, Article 4 of the Florida Constitution contain the rules for exempt property.

It is important that your attorney identifies exempt property to the court so that the probate judge understands that this property is not available to pay creditor’s claims.

Exempt property passes directly to the decedent’s wife and/or children and should never be used to pay debts of the estate. Non-exempt property is available to creditors who were owed money from the decedent. The most significant exemption under Florida law is for the decedent’s homestead property, which is covered in more detail in the next section.

Homestead Property in Florida Probate

Florida lawmakers have ensured that a decedent’s homestead (the house that they live in) is not taken by estate creditors upon their death. Decedents leaving their home to their wife, children, or descendants, are able to do so free of creditor’s claims. The exception to that rule is that “consensual liens” such as a mortgage on the property, tax debt, or money owed to contractors who performed work on the home may still be levied against a decedent’s homestead property.

Section 10, Article 4 of the Florida Constitution defines the requirements for property to qualify as protected homestead. Inside of city limits, a parcel of one half acre containing the primary residence owned by the decedent qualifies as protected homestead. Outside of city limits, homestead protection extends up to one hundred and sixty (160) acres of land containing the decedent’s primary residence. The purpose of this distinction is to protect farmers but prevent abuse of the homestead rule by person’s within the city limits.

In order to be considered a decedent’s primary residence, a decedent must reside in the home with the intention to make the property their permanent residence. There is no requirement regarding the amount of time that the decedent lived in the home prior to the home becoming homestead. Homes owned by companies and irrevocable trusts are ineligible for homestead protection, however a home owned by a revocable trust is eligible. Single family homes, condominiums, and mobile homes can all qualify for homestead protection. Even RVs and boats can qualify for homestead protection, but they must be immobile and fixed to the land (or a dock in the case of a boat).

In addition to the protections afforded to homestead property under Florida law, there are also restrictions regarding how a person can devise (give away in a will) their homestead in a will. If a person has a living spouse or minor children, they cannot leave their homestead to anyone except their spouse (which they can only do if there are no minor children). This limitation can be found in Florida Statute section 732.4015. If a decedent with a wife or minor children has a will improperly devising their homestead property, the property will pass as if there was no will.

There are differences between the way normal property passes under the intestate succession rules, and the way that homestead property passes. If a person dies with a spouse and minor children, the spouse receives a “life estate” in the home (the right to live there for the rest of their life). The “descendants in being” (the deceased person’s children, or if a child is deceased, their children) receive the “remainder interest” and receive title to the property upon the death of the spouse holding the life estate.

If the decedent did not have a spouse and minor children, interest in the homestead property will be transferred according to the intestate succession rules found in section 6 of this guide, unless devised to the spouse. If a decedent did not have a spouse, the homestead property may be devised to any person through a will, and in the absence of a will, the homestead property will be subject to the normal intestate succession rules.

For a quick visual guide to homestead, Kelley’s homestead paradigm is a tool used by many probate practitioners that graphically breaks down the homestead rules.

If you need to transfer a decedent’s homestead property, Contact our firm today. Homestead determination is a specialized area where local expertise matters. Our Cape Coral probate attorneys and Lakeland probate lawyers have extensive experience protecting waterfront and residential homestead properties.

Summary Administration

Summary administration is faster, cheaper, and less involved than formal administration. Learn more about summary administration in Florida and whether your estate qualifies for this streamlined process. In order to qualify for summary administration, an estate must contain less than $75,000 in non-exempt assets OR belong to a decedent that passed away more than two years ago. The threshold for non exempt assets qualifying for summary estate administration in Florida is set to increase to $150,000 on July 1, 2026, absent a veto from the governor.

In analyzing the $75,000 threshold for summary administration eligibility (which only applies to decedents which died within the last 2 years), exempt property is not counted. This means that if a decedent had a protected homestead property and two personal vehicles in addition to a bank account containing $74,000, the estate would qualify for summary administration, because the only non-exempt asset is worth less than $75,000. When a decedent passed away more than two years ago there is no limit on the value of the assets that can be transferred through summary administration.

The process of summary administration is more simple than that of formal administration, happens faster, and costs less money. A Petition for Summary Administration is filed with the court, and interested parties are provided formal notice of the proceeding via certified mail. Those parties include beneficiaries/heirs and known creditors, and in the case of unmarried decedents over the age of 55, the Agency for Health Care Administration. When those parties receive notice via certified mail, they have 20 days to object to the petition. Parties may elect to sign waivers agreeing to the probate proceeding, in which case the 20 day waiting period can be avoided.

Most counties additionally require an “affidavit of heirs” from the petitioner listing all relatives of the decedent. Some counties additionally require an “affidavit of criminal history.” When the court has received all required pleadings and is satisfied that the proper parties have received notice, the judge will issue an “Order of Summary Administration,” a legal document which officially transfers possession of the property of the decedent. The rules for summary estate administration are found in Chapter 35 of the Florida Statutes.

The downside of summary administration is that it cannot be used to probate large estates belonging to decedents who passed away within the last two years, and does not allow for the appointment of a personal representative to facilitate legal and business dealings on behalf of the estate.

Click here for more information about Summary Probate Administration in Florida, including prices and timelines.

If you need help with a summary estate administration in Florida, our attorneys will talk with you free of charge to discuss your options. Call us today at (352) 354-2654. Headquartered in Gainesville, FL, our lawyers work statewide, and are here to help you understand the Florida Probate Rules.

Formal Administration

Formal administration is the more involved variety of Florida probate. Formal administration is required for any estate with non-exempt assets valued at over $75,000 when a decedent died less than two years ago. Formal administration is also required any time that a personal representative is needed to settle the affairs of the decedent.

A personal representative (called an executor in other states) is a person appointed by the court to legally represent the estate. A personal representative can do anything the decedent could do when they were alive, and has a duty to ensure that the estate is distributed fairly to beneficiaries/heirs and creditors. Common scenarios when a personal representative is needed include when lawsuits must be filed on behalf of the estate, or when an investigation into the decedent’s assets must be completed. The specific duties and qualifications for personal representatives are detailed in the next section of this guide.

The first step in a formal probate administration is to seek the appointment of a personal representative. In order to have a personal representative appointed, interested parties must be noticed via certified mail. The rank of legal preference for personal representative is detailed in section 12 of this guide.

After a personal representative is appointed, an additional notice called a “Notice of Administration” is sent to interested parties letting them know that the decedent’s probate case has been opened.

Unlike a summary estate administration, a formal estate administration remains open while the decedent’s property is being collected, used to pay eligible debts, and then distributed to beneficiaries of a will or intestate heirs. As discussed in section 7 of this guide, formal administration includes a 90 day “notice to creditors” period that takes place during the case. Non-exempt assets cannot be distributed until the notice to creditors period is over.

In a formal estate administration, the personal representative is responsible for ensuring the legal transfer of the decedent’s assets to those entitled to receive them. The next section of our guide details who can serve as personal representative and the different tasks that they are responsible for during the estate administration.

Personal Representatives in Florida Probate

The first step in having a personal representative appointed is determining who may act as personal representative. If a decedent had a will, that document will state who has preference to serve as personal representative. If a decedent had no will, Florida Statute 733.301 determines who has preference to act. Our flowchart below breaks down the statute visually:

Download PR Preference Flowchart

The proposed personal representative will file a Petition for Administration with the Circuit Court having jurisdiction over the estate, and must also take an oath to lawfully administer the estate. If the personal representative is accepted, they are given “Letters of Administration” which give power over the estate.

Personal Representatives are sometimes required to pay a bond. This requirement can usually be waived when the personal representative is a family member.

Duties of the Personal Representative

These are the specific tasks that must be completed by the personal representative (with the help of their lawyer) during the estate administration:

Serve Notice of Administration Florida Statute section 733.212 requires the personal representative to mail a “Notice of Administration,” on interested parties, including the decedent’s spouse, beneficiaries, and others who may be entitled to estate assets.

Take Inventory

The personal representative has the job of collecting and establishing the value of all estate assets as provided by Florida Statute section 733.604. A copy of the inventory must be sent to interested parties and, upon request, a beneficiary/heir must also be provided a written explanation of how the value was determined, including copies of any appraisals if applicable.

Open Safe Deposit Box (If Needed)

There are specific requirements to open and take inventory of contents in a safe deposit box containing the property of the decedent. Florida Statute section 733.6065 sets out the process for taking inventory of a safe deposit box. The safe-deposit box must be opened in the presence of two of the following: (1) an employee of the institution where the box is located, (2) the personal representative, or (3) the personal representative’s attorney of record. Each person who is present must verify the contents of the box under penalties of perjury by signing a copy of the inventory.

Secure Property of the Decedent

Florida Statute section 733.607 empowers the personal representative with control of the decedent’s property. The personal representative must act reasonably to protect and preserve assets for the benefit of interested parties during the estate administration. The personal representative will manage all estate property until creditors’ claims have been resolved and final distribution can be made.

Serve Notice to Creditors

As discussed in section 7, a personal representative must publish a notice to creditors under Florida Statute Section 733.2121, unless claims are barred (because a decedent died more than two years ago). The personal representative also must identify “reasonably ascertainable” creditors and provide the time frame for filing their claims for payment. If there are false debts alleged, the personal representative must challenge them by filing an objection.

Litigate on Behalf of the Estate

If the estate is being sued, or suing someone, the personal representative is responsible for managing that litigation. For instance, if someone needs to be sued for causing the decedent’s death, the personal representative must file a wrongful death action against the negligent party. Section 19 of this guide goes into detail about litigation involving the creation or administration of the estate, while section 20 discusses wrongful death litigation.

File Taxes When Required

If the estate produces income, or reaches the threshold to activate federal estate taxes the personal representative may have to file taxes on behalf of the estate. Florida does not have an estate tax or income tax, so the only estate taxes that can apply to a Florida estate are federal estate taxes. In 2026, the estate tax threshold for federal estate tax is $15 million dollars per individual ($15,00,000.00), meaning that if a decedent has less than 15 million in assets there will be no estate tax. Therefore the vast majority of estates are not taxed.

This $15 million threshold was established by the One Big Beautiful Bill Act (OBBBA), put into law on July 4, 2025. The new 15 million dollar federal estate tax exclusion replaced the existing “sunset” provision of the 2017 Tax Cuts and Jobs Act, which would have seen the exemption drop to approximately $7 million in 2026.

If an estate remains open for an extended time and produces income through rental properties or investments, it may be subject to income tax. The income threshold for income taxes is six hundred dollars per year.

Florida Statute section 733.817 contains specific details regarding the apportionment of estate taxes in Florida, for those rare instances when they must be paid. When taxes are required to be paid in an estate, it is wise to involve a CPA who has experience in estate taxes.

Distribute Estate Assets

Once the personal representative has used estate assets to pay valid debts and estate administration expenses (including lawyers, storage, mortgages, etc.), final distribution can be made to beneficiaries/heirs. Distributions will be made through the payment of money or the transfer of property. If a bank account was created for the estate, the personal representative will write checks out of that account. If a law firm is holding estate assets in trust, the personal representative will authorize those to bi distributed. For land and other property, the personal representative will sign documents to transfer interest to the appropriate people. The personal representative may also take a fee of 3% of the estate assets for services rendered to the estate.

Close the Estate

Now that the personal representative has properly accounted for estate assets, paid valid creditors, resolved pending litigation, and distributed estate property to the appropriate beneficiaries or heirs, the estate may be closed. Florida Statute section 733.901 governs the discharge of the personal representative.

The duties of a personal representative are broad, and every probate case is unique. If you need advice regarding estate administration, call our office at (352) 354-2654 to schedule a free call with an attorney.

What Does a Florida Probate Lawyer Do?

Hiring the right probate lawyer can be the difference between a smooth estate administration and a nightmare. Ineffective counsel can exacerbate the already stressful process of resolving the affairs of a decedent.

Every lawyer’s job is to educate their client about the law that applies to their case, to present the case to the court, and to secure the best possible result under the applicable law. Most probate cases are uncontested, meaning that there is only one correct outcome under the law. Your probate lawyer’s first job is to understand Florida law and correctly determine who is entitled to the decedent’s assets. This is where many inexperienced attorneys make mistakes if they are not accustomed to analyzing estates using the Florida Statutes or interpreting the last will and testament in the context of an estate administration.

Once the correct beneficiaries and heirs are identified, the lawyer’s job is to draft the appropriate pleadings depending on state statutes and the local requirements of the county’s circuit court. The lawyer must then send the appropriate notices to interested parties before submitting proposed orders for the judge to sign. If anyone objects to the probate administration, the attorney must advocate on behalf of their client and explain to the court why the probate administration is proper. Specific examples of potential objections and probate litigation are outlined in section 19 of this guide.

If a lawyer makes mistakes at any of these steps, the probate administration will be compromised. Therefore it is extremely important to hire a firm that focuses their practice on probate, and has extensive experience handling estates. Our founding partner, R. Nadine David, worked in a Florida probate court as a staff attorney before entering private practice. Our policies and procedures for handling probate cases were built with an understanding of the court’s internal processes. Our understanding of the judge’s perspective allows us to secure results for clients efficiently. Click here to learn more about Florida Probate Law Group. Our Gainesville Florida, estate lawyers work in every county in the state.

How Much Does Probate Cost in Florida?

The cost of an estate administration will vary depending on the size and complexity of the estate. Our firm charges flat fees between $2,000.00 and $6,000.00 for simple probate administrations in Florida. We charge flat fees when possible so that clients know exactly what the total cost of the case will be up front. However, due to the unpredictable nature of probate litigation and complex probate administrations, we charge hourly fees on those cases. Summary administration is less costly than formal administration, representing the lower end of the cost spectrum. Formal administration is a more involved process, and is typically more expensive.

Whenever hiring an attorney it is wise to retain a firm that focuses their practice to one area of law. Focusing on one practice area allows an attorney to become proficient and knowledgable over the course of their career. At Florida Probate Law Group, we focus exclusively on probate and estates.

In addition to attorney’s fees, there are court costs involved in estate administration. Filing fees between $345.00 and $405.00 must be paid for each case, unless waived for indigency. In formal administrations, there is also a cost of the publication of a notice to creditors in a newspaper, which is generally around $250.00.

Attorney’s fees and other estate expenses including funeral bills can be repaid to the person who paid them using estate assets.

If you would like to get a free quote and legal analysis of your probate case, call our firm at (352) 354-2654 to schedule a call with an attorney. Our attorneys, located in Gainesville, FL handle probate cases in every Florida county throughout the Sunshine State.

How Long Does Probate Take in Florida?

Summary estate administration generally takes around 8 weeks to complete in an uncontested case. This can vary depending on the law firm handling the case, the parties involved, and the court the case is filed in.

Probate timelines vary by county and complexity. Summary administration typically completes in 2–3 months, while formal administration can take 6–12 months or longer. Our Port St. Lucie probate attorneys and Palm Coast probate lawyers can help expedite the process with insider knowledge of their local courts.

In a formal estate administration, it typically takes around 4-6 weeks to have the personal representative appointed. The estate generally remains open for around 1 year, however this will vary depending on what the personal representative needs to accomplish during the estate administration. For instance, if there is a wrongful death lawsuit arising from the decedent’s passing, the estate may need to remain open for multiple years before that lawsuit is resolved.

When beneficiaries argue about how an estate should be administered, these timelines are enlarged. Section 19 of this guide explains how litigation can affect the course of an estate administration. To get an idea of how long your specific probate matter would take to conclude, click here to contact our firm.

Avoiding Probate in Florida

Careful planning during your lifetime can allow your family to avoid probate upon your death. This allows assets to be available immediately free from creditor’s claims. Some tools for avoiding probate are simple and free, while others are more complex and require the help of an attorney.

Effective ways to avoid probate include:

• Pay on death beneficiaries of financial accounts
  • By designating someone (or multiple people) to receive a financial account upon your death, you can avoid probate for that asset. Money from such an account will go directly to the beneficiaries listed on the account, bypassing probate. Pay on death beneficiaries can be added to financial accounts for free without the help of a lawyer.

• Lady Bird Deeds/ Rights of Survivorship. For real estate, creating a “Lady Bird Deed,” also called an enhanced life estate deed, will allow you to designate someone to receive a home or parcel of land upon your death. Similarly, “rights of survivorship” can be included in the language of a deed to allow a co-owner to have full ownership upon your death. When creating deeds, it is important to consult with an attorney. Florida Probate Law Group regularly drafts deeds to help families avoid probate for between $250.00-$350.00.
• Trust based estate plans. A trust based estate plan will avoid probate by placing your assets in a trust automatically transferred to a successor trustee upon your death. In your trust you will leave directions to your successor trustee regarding how your property should be divided. Trusts have advantages regarding asset protection to your heirs, privacy, and control of your assets after your death. To speak to an attorney regarding a trust based estate plan call our law firm at (352) 354-2654.

What Happens to a Child’s Inheritance in Florida?

Children’s inheritances are subject to specific laws to ensure that they are protected. Florida Statute section 744.301 provides that a child’s natural guardians may collect an inheritance up to $15,000.00 dollars for the minor. For an inheritance over $15,000.00 a guardian of the property should be appointed. That guardian may be one of the child’s parents or another responsible adult. The guardian must account for the child’s assets annually by filing documents with the court until the child turns 18. To learn more about the guardianship process, click here.

If you intend to leave property to a minor child, guardianship can be avoided through the use of a trust based estate plan. By naming the child as a trust beneficiary, you can allow a successor trustee to provide funds for the child as needed upon your death, until the child becomes an adult and receives their full inheritance.

Inheritances and Government Benefit Eligibility for Disabled Individuals

Many disabled individuals rely on government benefit programs to make ends meet. Certain programs, such as SSDI and Medicaid, are subject to asset thresholds. This means that if a person receiving government benefits puts enough money in the bank, they will lose their benefits. As of 2026, the asset threshold for SSDI and Medicaid in Florida is $2,000.00 for a single person and $3,000 for a married couple. Therefore, program recipients depositing more than this amount into their bank accounts are subject to a loss of benefits.

Our flow chart below illustrates which government benefits are asset sensitive:

Download Government Benefits Cheat Sheet 2026 – Inheritance

Asset thresholds are problematic for government benefit recipients who are receiving inheritances. SSI and Medicaid often provide thousands of dollars per month in medical care and financial assistance. Losing these benefits will result in the quick depletion of their inheritance. Fortunately, federal law (42 U.S.C. § 1396p(d)(4)(A)) allows for the creation of a “special needs trust” also known as a “supplemental needs trust” so that a disabled person can enjoy their inheritance without losing benefit eligibility.

By placing their inheritance in a special needs trust, a disabled person can access those funds for purposes like travel, dining out, vehicles, and purchasing consumer goods. Special needs trust funds are meant to supplement government benefits, and are therefore not supposed to be spent on medication, rent, or groceries. Special needs trusts provide flexibility for inheritance funds while allowing disabled individuals to remain eligible for government benefits, even when receiving large inheritances.

If you would like to discuss the suitability of a special needs trust for yourself or a loved one, call our law firm at (352) 354-2654.

Probate Litigation

When there are disagreements regarding an estate administration, lawyers will litigate in order to achieve their client’s goals. Most probate cases resolve without significant litigation. Litigation arises in circumstances when parties cannot agree regarding important aspects of the probate case, including 1) who should serve as personal representative, 2) whether a decedent’s will is valid, and 3) whether a personal representative has fairly apportioned assets of the estate.

Personal Representative Appointment Litigation

In determining who should serve as personal representative, a court will determine preference as indicated in section 12 of this guide. If two individuals have equal preference, they may serve as co-personal representative, or ask the court to determine which person is more qualified. In determining which party is more qualified, the court will consider criminal history, educational background, and the relationship with the decedent.

Contested Wills

If a decedent’s will is contested, the court will make a determination regarding the validity of the will after hearing arguments from all parties. Wills may be contested as technically deficient (lacking witness signatures), lack of testamentary capacity, or as being the product of fraud or undue influence. A fraudulent will would be a forged will or a will that the decedent was induced to sign through fraud.

There are two general categories of fraud for a Florida will:

• Fraud in the Execution: The decedent was led to believe the will they signed was some other document than a Will.
• Fraud in the Inducement: The decedent was intentionally misled about important matters that affected the decisions made in their will.

Undue influence is differentiated from fraud, and can be used to invalidate a will when the someone benefiting from the will had a confidential relationship with the decedent and procured the will for the decedent to sign.

Lack of testamentary capacity means that the decedent did not have full possession of their mental faculties when they signed the will. This could be caused by dementia, drugs, or other factors affecting their cognition.

Estate Administration Litigation

After a formal estate administration is commenced, if an heir or beneficiary believes that the personal representative is not fulfilling their duties, they may seek to have the personal representative removed. Grounds for removal would include the misappropriation of estate assets, or the failure to secure and protect property of the decedent. In some circumstances, the court will appoint an attorney ad litem to assist the personal representative in the proper administration of the estate as an alternative to removing the personal representative.

Florida Probate for Florida Wrongful Death Cases

When someone’s death is caused by negligence, the responsible party can be sued for “wrongful death.” In Florida, it is the responsibility of the personal representative to pursue the wrongful death claim on behalf of the estate. The personal representative will hire a plaintiff’s attorney to sue on behalf of the estate. The wrongful death claim is a separate case, filed in civil court. Florida Probate Law Group works with plaintiff’s firms and insurance carriers across the state to facilitate wrongful death estate administrations on a flat fee basis.

Wrongful death settlement proceeds are treated differently than other estate assets. Under Florida Statute section 768.21 explains who is eligible to receive damages for wrongful death in Florida. Our flowchart below breaks down who can receive wrongful death settlements:

Download 2026-Wrongful Death Damages Flowchart

In addition to bringing the wrongful death lawsuit, the personal representative is also responsible for allocating the settlement among eligible survivors. Damages due to survivors are not subject to estate creditors, and should never be used to pay debts of the decedent. Click here to learn about settlement apportionment in wrongful death cases.

Florida Probate Law Group handles estate administrations in every Florida county, with deep familiarity in each circuit’s specific procedures, local judges, and filing requirements. Whether your case is in a large metro courthouse or a smaller county court, our attorneys know the local rules that matter. Here’s where we serve:

Local Probate Representation Across Florida

• Tampa Probate Lawyers (13th Circuit) — Handling estates in Hillsborough County, including formal and summary administrations in one of Florida’s busiest probate courts.
• Fort Lauderdale Probate Attorneys (17th Circuit) — Serving Broward County estates with experienced advocacy in the 17th Judicial Circuit.
• Lakeland Probate Lawyers (10th Circuit) — Guiding families through Polk County estate administration, including homestead and creditor issues unique to Central Florida.
• Port St. Lucie Probate Attorneys (19th Circuit) — Managing St. Lucie County estates with efficient, flat-fee representation in the 19th Judicial Circuit.
• Cape Coral Probate Lawyers (20th Circuit) — Assisting Lee County families with waterfront and residential property estates in Southwest Florida.
• Palm Coast Probate Attorneys (7th Circuit) — Navigating Flagler County’s mandatory circuit checklists and digital filing protocols for Palm Coast estates.

All locations offer the same transparent $3,500 flat-fee pricing for summary administration and 100% remote service — no travel required. For a faster, more affordable option, explore Florida summary administration, which can resolve qualifying estates in just 2–3 months.

About our Firm Florida Probate Law Group was founded by husband and wife Charles “Cary” David and R. Nadine David . Having worked in the courts and large law firms, our founding partners grew frustrated in watching ineffective lawyers take advantage of their clients by billing hourly rates for work that was unnecessary or counter productive. They founded Florida Probate Law Group with a vision of helping families and providing value for money. Now, our Gainesville, Florida based firm helps hundreds of families across the state with their legal matters every year. We strive to solve problems and help clients navigate the legal process painlessly and efficiently.

Read our google reviews here.

Read our lawyers’ answers to frequently asked questions here: Florida Probate FAQs

If you need advice regarding probate administration in Florida, click here to contact us or call Florida Probate Law Group anytime at (352) 354-2654 to schedule a free call with an attorney.

Our Gainesville, FL probate attorneys handle estate administrations in every Florida County, and are happy to speak with you about your case. We are proud to provide this Complete Guide to Florida Probate, and hope that it helps to explain the 2026 Florida Probate Rules.

Why Should I Have a Will?

Unfortunately, many people pass away or become extremely paralyzed o incapacitted without a legal will in place. Making sure that you have a current will is vital to ensure that your assets are distributed according to your wishes. Having a will in place will put your mind at ease knowing that your belongings will be distributed accordingly and final wishes executed in the manner you desire.

Updating Your Will

It is important to update your will for a number of reasons. You will want to make sure that you do this as soon as possible, especially in the event that you unexpectedly fall victim to a tragic accident. There are various reasons to update your will that include, but not limited to:

• Being recently diagnosed with a serious illness
• Experienced a change in your relationship status. If you have divorced or separated from your partner, you will want to make sure that they do not stand to inherit any of your assets.
• A spouse has passed away. It will be important that your will assigns a new beneficiary or beneficiaries. Failure to do so could put you at risk of passing away with the court having to make these decisions without knowing the people involved.
• Appointing a guardian to assume care of your children in the event that you pass.
• Changes in your financial situation. This should include any inheritances or investments.

Avoid Probate

A rule of thumb that a properly executed will should keep your assets and estate out of probate. Probate is the system that is set up for estates without a properly executed will intact. If there is not a will, then your estate needs to go through the probate procedure. A will may still find its way into probate courts due to will contentment or other valid reasons; however, it can be used as a road map for the courts to review and determine your final wishes.

A life changing experience should be an indicator to move forward with creating a will. It works as an eye-opener that can possibly push you to coming to terms with your mortality. Wrongful death lawyers can assist with your needs pertaining to wrongful death or personal injury. They can also advise you on what other matters need to be taken care of in your life after this experience. These lawyers should be able to point you in the right direction and towards other competent professionals to assist with other legal matters such as probate and estate planning.

Our Gainesville FL Guardianship Lawyers are Here for You

When a person lacks the capacity to care for themselves or make decisions, Florida law provides a way for their family (or a professional guardian) to be appointed as their legal guardian and to make decisions for the incapacitated person (known as the ward). Depending on the situation, there are different types of guardianship proceedings

Incapacity Guardianship

If the individual (known as the “proposed ward”) lost capacity due age or an accident, the guardianship court will appoint an examining committee to conduct an evaluation and complete detailed report regarding the mental state of the ward, and each member of the examining committee will give an opinion on whether a guardian should assume the rights of the ward. Rights that can be transferred to a guardian include the right to manage finances, the right to make medical decisions, and the right to determine residency. If the medical professionals on the examining committee agree that the proposed ward lacks capacity, the guardianship court will appoint a guardian to act for the ward.

There is an “emergency guardianship” proceeding available that can secure letters of guardianship prior to the examining committee evaluation if there is an imminent threat to the person or property of the proposed ward.

If the proposed ward has a developmental disability from childhood the examining committee can sometimes be avoided through a proceeding known as a “guardian advocacy,” where medical evidence of the developmental disability can be substituted for the examining committee report. A Gainesville FL guardianship attorney at Florida Probate Law Group can help you get specific answers about how you can secure guardianship over a family member who needs your help.

Minor Guardianship

Apart from incapacity guardianship, Florida law also provides for the guardianship of minor children. Minor guardianship can be used to gain rights over a minor when parents are unavailable to raise the child.

Additionally, when a minor child is to receive a sum of more then $15,000.00, Florida law requires that a “guardian of the property” be appointed to oversee the minor’s funds. Our flowchart here describes the rules for minor settlements in Florida. The guardianship court will protect the child’s money in a restricted depository or court approved annuity, and the guardian will only be able to spend money for the minor with the court’s permission.

Qualifications and Duties of Guardians

In Florida, guardians cannot have a felony conviction, and are subject to a background and credit check prior to appointment. Courts may require that a guardian post a bond depending on the assets of the ward and the background of the guardian.

Guardians are also required to enroll in an 8 hour guardianship education course and file yearly guardianship plans and accountings with the court. Our blog article here provides more detail regarding the responsibilities of a guardian.

Professional Guardians

If a family member is unwilling or unable to serve as guardian (or would prefer the convenience of using a third party to administer the guardianship), a professional guardian can be appointed by the court to oversee the responsibilities associated with caring for the ward. Professional guardians are licensed and bonded and generally knowledgeable in the various requirements of serving as guardian. There are several advantages to using professional guardians, including the ability to avoid yearly red tape and court filings, and the ease of having a professional guardian appointed that results from their experience and the trust placed in professional guardians by local judges.

Gainesville FL Guardianship Attorney

Florida Probate Law Group has experience securing guardianship for families all over the state. Our Gainesville FL guardianship attorneys have the knowledge and experience to help your family with a guardianship case in any jurisdiction, from the keys to the panhandle and every city in between. We work in every county in the state, charging flat fees and never billing by the hour. That means you know how much you will pay at the outset of the case, and that our lawyers will never come back asking for more money. Call us today at (352) 354-2654 or email info@floridaprobatelawgroup.com to learn more about your guardianship case and how we can help.

Probate is the process of transferring ownership of a deceased person’s belongings and assets to those people entitled to receive them under Florida law. In a probate case, a judge determines who is entitled to benefit from a decedent’s “estate.” An estate is simply everything a decedent owned when they died. If the deceased person had a will, that document will determine who receives what share of the estate. If the decedent died without a will (intestate), the estate will go to the decedent’s closest relatives (see “intestate succession” rules here).

In Florida, there are two different types of probate; formal administration and summary administration.

Summary Administration

Summary estate administration is a shorter, less expensive type of probate available for estates containing less than $75,000 in non exempt assets, or for decedents that died over two years ago. Exempt assets include the house that the decedent lived in (when left to a spouse or descendent) and two vehicles that they owned. Therefore, anyone who has more than $75,000 in assets in addition to the house that they live in and cars that they drive, will have an estate that is ineligible for summary administration. The process of summary estate administration involves a Petition for Summary Administration being drafted and submitted to the probate court. After approving the petition and receiving supporting documentation, the probate court enters an Order of Summary Administration which legally transfers the assets of the decedent.

Formal Administration

Formal estate administration is a more lengthy probate process that involves the appointment of a “personal representative” to administer the decedent’s estate (other states refer to this role as the “executor”). Formal administration is necessary when the decedent’s estate does not qualify for summary administration, or when there is a specific need for a personal representative to handle the affairs of the decedent. For instance, if a lawsuit needs to be filed against someone that caused the death, a formal administration is needed so that the personal representative of the estate can facilitate the lawsuit. You can speak to a Gainesville FL probate attorney about your case for free by calling (352) 354-2654.

Estate Creditors

Both categories of probate administration in Florida involve the consideration of creditor claims. In a summary administration, it is up to the petitioner (the person filing the case) to make a diligent search for creditors and arrange for payment from eligible assets. In a formal estate administration, a notice is published in the newspaper alerting creditors that they have 90 days to file a claim in the probate case if they allege that they are owed money by the decedent. The personal representative has an opportunity to object to these claims if they are not valid.

Certain “exempt property,” including the house that the decedent lived in, is exempt from creditor’s claims under Florida law. The decedent’s Florida residence is referred to as “homestead property,” and receives special treatment under the Florida Constitution.

The reason that Florida protects homestead property from estate creditors is to prevent families from being deprived of their home by debt collectors after a breadwinner dies. Homestead protection extends to the spouse and children of the decedent, and also prevents a decedent from using their will to give their homestead property to anyone but their spouse or minor children. Homestead property is protected from all debt, except mortgage debt and debt to building contractors, because those categories of debt are considered to be “attached to the land.”

If a decedent passed away more than two years ago, all creditor’s claims are barred, and no creditors will be paid through the probate administration.

What is a Valid Will for Probate?

In Florida, any writing signed by two witnesses in the presence of the testator (person writing the will) is a valid will that can be admitted to probate. A will does not need to be notarized to be effective, but if the will is not notarized one of the witnesses to the will must make a statement to the court authenticating the will.

Wills can be challenged on the basis of incapacity or undue influence. Incapacity means that a decedent was not in their right mind when signing the will. Evidence of incapacity includes a diagnosis of dementia or other disease affecting the brain. Undue influence means that a person close to the decedent tricked or coerced them into signing the will. Evidence of undue influence includes the fact that the influencer paid for the will, receives benefit from the will, and had a close relationship with the decedent. If a will is found to be invalid, the previous valid will becomes controlling. If no previous will exists, the estate reverts to intestate succession. You can reach to a Gainesville FL probate attorney for a free information session by emailing cdavid@circuit8law.com.

How Long Does Probate Take?

A variety of factors influence how long a probate administration takes. Summary administration can be completed more quickly than formal administration, because there is no 90 day waiting period for a notice to creditors. Either form of probate is expedited when all parties agree regarding the disposition of the estate. Probate litigation arising from disagreements about how the estate should be divided can significantly prolong the time it takes to complete an estate administration.

For non litigated estates, summary administration generally takes between 2-6 months to be completed and formal administration generally takes between 4 months to one year for full distribution to take place.

How Much Does Probate Cost?

Different probate attorneys have different ways of charging for probate representation. Many law firms charge by the hour. There are major disadvantages to these types of billing arrangements. Hourly billing means the longer they take to solve the problem, the more that they get paid. Furthermore with an hourly law firm, you don’t know how much you will end up paying or how many times they will come back and ask you for more money.

At Florida Probate Law Group, we charge reasonable flat fees, meaning that you know exactly what you will pay for your probate case at the beginning and can rest assured that our attorneys are efficiently handling your matter instead of dragging it out to create extra fees. Our probate fees run from $1500.00 to $5000.00 depending on the specifics of your case and what type of probate you need. Court costs range between $345.00 and $655.00.

Avoiding Probate

Once someone passes away with assets titled in their name, probate is the only way to get those assets transferred to their loved ones. However there are several things you can do during your lifetime to avoid the need for probate upon your death. Naming “pay on death” beneficiaries to bank accounts and financial instruments will cause them to automatically transfer to a designated person when you pass away, avoiding the cost and delay of a probate case. Similarly, executing a life estate deed or “ladybird deed” can avoid probate for real estate by automatically transferring title to property upon death.

Trust based estate plans likewise avoid probate by transferring ownership of assets to a trust during your lifetime, and designating a successor trustee to immediately take control of those assets upon your death. Trust bases estate plans have many other uses, including avoiding estate taxes, and protecting inheritances from legal judgements and division through divorce.

Florida Probate Law Group

Florida Probate Law Group is dedicated to providing thorough and efficient representation in probate cases throughout the state of Florida. Florida Probate Law Group helps families who have lost a loved one navigate the legal process required to administer the decedent’s estate. Our mission is to educate our clients of their legal rights and help them reach their goals. Our staff is dedicated to guiding clients through difficult times and offering strategies to move forward.

Before Nadine David founded Florida Probate Law Group, she worked as a probate court staff attorney handling probate cases for the Eighth Judicial Circuit and assisting judges with their workloads. During her time at the courthouse, she saw that far too often families are taken advantage of by unscrupulous lawyers dragging out the probate process to rack up hourly fees. Upon entering private practice, Attorney David created a probate firm that charges flat fees (not hourly) so clients know what they are getting into upfront. Now, the attorneys at Florida Probate Law Group help hundreds of families navigate probate and guardianship matters each year, delivering predictable results at agreed upon prices.

Our Probate attorneys handle cases for families in every major city in Florida, from Gainesville to Tallahassee, to Miami, to Jacksonville, to Tampa, to Ocala, to Panama, to West Palm Beach, to Ft. Lauderdale, to Orlando, to Naples, to Sarasota. Our lawyers are Floridians and enjoy helping our neighbors.

Affordable Probate

Florida Probate Law Group was founded to provide Floridians with a predictable and affordable alternative to the typical probate process. The traditional model of pay-by-the-hour attorney’s fees meant the longer the lawyer takes to solve your problem, the more they get paid. We reject that idea, and charge flat fees for our probate cases, getting families through the probate process without the extra stress of unpredictable attorney’s fees. A Gainesville FL probate attorney with our firm would be happy to explain the specifics of our case and quote you a flat fee during a free consultation.

Our law firm was founded on the values of transparency and flat-fee billing. That means we are always honest with our clients about the cost and they can know exactly what they are getting into at the outset of the case. Most lawyers charge by the hour. When you are charged by the hour, the longer it takes to resolve your case, the more money your lawyer gets paid. Bill-by-the-hour lawyers charge you for phone calls (even if you are calling for an update), for printing, for sending faxes, for “long distance” phone calls, et cetera. Bill-by-the-hour lawyers charge you a relatively modest upfront fee (a “retainer”) and then continue charging you above and beyond that amount. Before you know it, you are neck deep in an outrageous legal bill and you are trapped in feeling like you have no choice but to keep paying in hopes of one day actually resolving your matter.

Contact Us

Call us anytime at (352) 354-2654, or email cdavid@floridaprobatelawgroup.com for to arrange a free consultation and get qualified advice about your probate case.

Statewide Probate Lawyers

Based in Gainesville, Florida Probate Law Group works statewide administering estates in every city and jurisdiction. A Gainesville FL probate attorney with out office with be happy to discuss your matter free of charge.

Bo Diddley was an American music icon that inspired the likes of the Beatles and the Rolling Stones. While Bo’s original sound left an indelible mark on contemporary music, he struggled to find mainstream recognition for his contributions during his lifetime, sometimes feeling victimized by the 1950’s record companies that embraced his style but repackaged it for white audiences. Rolling Stone has written about Bo being copied by the King himself, and the Smithsonian proclaims that “Bo Diddley’s beat changed the course of rock music.”

His pioneering sound led Bo to become the first black artist featured on the Ed Sullivan Show in 1955, where he defied executives and played an original song instead of the cover song they had slated for him.

Bo was never invited back to the Ed Sullivan show but continued to rule the stage until suffering a stroke in 2007. Bo passed away in 2008 at the age of 79 leaving a big family and even bigger legacy. While not always recognized as an originator of rock music, his heavy influence on the genre is undeniable. What Bo may lack in name recognition he more than made up for in boldness and originality.

Legacy Soured

Unfortunately for Bo’s many children and grandchildren, his amazing legacy has been soured by alleged mishandling and misappropriation Bo’s of estate and intellectual property since his 2008 death. The family alleges that Bo (known to the government as Ellas McDaniel) was manipulated to execute an estate plan that would unconscionably benefit the managers that handled Bo’s business affairs.

Bo Diddley’s 2006 will, which the family claims he lacked the capacity to execute, granted his talent agents a 30% cut of all revenue ever produced from his intellectual property after his passing. This lifetime royalty share was not contingent upon further work promoting intellectual property or limited to royalties that Bo’s managers helped bring in. The attorney who wrote the will was empowered as trustee over Bo’s intellectual property and given the lifetime power to choose all future successor trustees.

In 2018, ten years after Bo’s death, eighteen members of Bo’s family retained our law firm to seek the removal of the trustee controlling Bo Diddley’s song rights and the managers that were enjoying the music royalties. My first meeting with the family was overwhelming. There were many voices and most of them were very angry.

The trustee empowered by Bo’s controversial will had managed the trust for years without accountings or records. The family was in the dark regarding their patriarch’s estate and felt powerless, employing multiple law firms but getting nowhere. The original trustee quit before ever accounting for trust assets and hand-picked a successor who eventually issued accountings to the family. In 2016, the family received their first accounting and was dumbstruck by the professional service fees that consumed music royalties that they felt entitled to. As we sat around a large conference table pouring over documents all I could ask myself was; “how did this happen?”

An Ounce of Prevention

The answer to that question was that Bo did not get good advice during his lifetime and his family did not get good advice in the wake of his death. We were talking about a multi-million dollar estate of a well known celebrity, and there was no part of the estate plan, estate administration, or trust administration that had been performed ethically and competently. The family was adamant that Bo did not know what he signed when he executed his 2006 will and never intended to put his managers and their lawyer in such a powerful and profitable position. However, that ship had sailed years ago when the estate went through probate, and we were now looking at an uphill battle of protracted trust litigation to regain control of Bo’s assets for his family.

The lesson that I took from this is that the addage “an ounce of prevention is worth a pound of cure” is an understatement. If Bo or his family would have consulted with an objective expert about his estate plan prior to his death, this entire mess could have been avoided. Similar to cancer caught early during a screening, the influence of Bo’s management team on his estate plan could have been nipped in the bud by simply executing a new will and trust that did not revolve around their interests. If he was indeed incapacitated in 2006 an incapacity guardianship proceeding could have determined that and empowered a family member or neutral third party to protect his interests. There were many crossroads where good advice could have made a big difference, but with each year that had passed the problem had become more intractable.

The subsequent waste and arising litigation has cost the trust millions of dollars between legal fees and lost promotional opportunities, and resulted in untold heartache and frustration for Bo’s heirs. While the story ultimately has a happy ending (see part 2), 10 years of costly legal struggles arose from a failure to seek qualified, unbiased advice on an important decision. Our firm takes this lesson to heart when advising our clients regarding their cases.

When handling probate, guardianship, or estate planning matters for our clients we ensure that things are done the right way. Law firms all over the state trust Florida Probate Law Group to handle high stakes estate administration related to litigated wrongful death claims. Our experience working on complex probate matters allows us to avoid common pitfalls and get predictable results. We prevent mistakes that could jeopardize case outcomes by ensuring that settlements are compliant with the probate code and efficiently securing the court orders that litigators need. In representing consumer clients we bring the same diligence and thoroughness to bear in achieving their goals.

If you have questions about your probate, guardianship, or estate planning matter, learn from Bo’s mistake and get an objective opinion to prevent problems down the road. We are always here to help. Call anytime at (352) 354-2654.

Florida courts have recently become strict regarding the enforcement of court approval requirements for global settlements involving minors in Florida. At Florida Probate Law Group, we make sure probate and guardianship issues do not delay settlements for injury firms. Most injury attorneys know that a child injury settlement over fifteen thousand dollars triggers Florida’s complex court approval statutory scheme (see our flowchart here). However, many are unaware that ANY settlement benefiting a child, no matter the value, requires court approval when paid as part of a global settlement with a total gross value of fifty-thousand dollars ($50,000.00) or more.

Allen v. Montalvan

As explained by Florida’s 4th DCA in Allen v. Montalvan, Florida’s statutory scheme regarding court approval of child settlements is activated when a total global settlement reaches the threshold of $50,000.00, regardless of the amount apportioned to the minor:

“Because the [global] pre-suit settlement in this case involved minors and totaled $50,000 or more, the trial court was required to appoint a guardian ad litem to represent the children’s interests before approving a settlement that disposed of the children’s claims. So.3d —-, 2016 WL 4547993 (Fla. 4th DCA Aug. 31, 2016)”

The lawyers in Montalvan learned this lesson the hard way – after the minor’s parents hired new attorneys, challenged the previously agreed upon settlement, and filed a lawsuit seeking greater damages. This all happened after the parents had signed releases agreeing to the settlement on the minor’s behalf. The global settlement was rescinded as non-binding, and the parents were allowed to proceed to file a civil claim.

Prior to Montalvan, many firms were under the impression that a pre-suit global settlement over $50,000.00 did not automatically trigger court approval proceedings if the child’s portion alone did not exceed $15,000.00. Indeed many remain under this impression. However, as we learned in law school, ignorance of the law is not excuse. Our goal at Florida Probate Law Group is to be an asset to plaintiff’s firms and provide certainty that their settlements are secure.

Resolving cases without consideration of Florida’s child injury laws is a recipe for disaster, as it leaves the door open for parents to come back and rescind the settlement regardless of releases signed on behalf of the child. From the Bar’s 9th edition of Florida Guardianship Practice: “Mistakenly making payments to a parent as natural guardian in the absence of authority does not discharge an obligation to the minor in excess of $15,000.00. See Auerbach v. McKinney, 549 So. 2d 1022 (Fla. 4th DCA 1989)“

The acceptance of funds offered in settlement of a minor’s claim using an arrangement that circumvents the proper legal procedures may result in personal liability of the plaintiff’s counsel, restoration of funds improperly paid to the attorney, and legal malpractice liability. In McKinney attorneys had to return money (including fees) for a brain damaged minor client, after attorneys accepted payments from defendant’s insurers made out to attorneys rather than to the minor client without seeking court approval. Get Help With Global Settlements Involving Minors in Florida

As shown in Montalvan and McKinney, a “settlement” not in compliance with Florida’s child injury laws is not a settlement at all. Such a case is a ticking time bomb for both defense and plaintiff’s counsel, as failing to comply with Florida’s child settlement laws leaves plaintiff’s firms open to the risk of malpractice suits and insurance companies vulnerable to paying out on the same claim twice. Our firm has experience securing court approval for global settlements involving minors in Florida to protect parents, lawyers, and insurance carriers.

Florida Probate Law group works with injury attorneys across the state to ensure that their child injury settlements are in compliance with Florida law, secure court approval of those settlements, and establish guardianships and restricted depositories when required by statute. Call us anytime at (352) 354-2654 for a free consultation to discuss your case. We work on a flat fee basis billing your client’s net at settlement resolution.

Fortunately, federal law (42 U.S.C. § 1396p(d)(4)(A)) allows for the creation of a Special Needs Trust to hold settlement funds for the client’s benefit, while allowing the client to maintain eligibility for asset sensitive programs. Funds placed into a Special Needs Trust (A.K.A. Supplemental Needs Trust) are able to be used for travel, recreation, luxury items, and therapies not covered by the client’s government benefits. For more details on creating a Special Needs Trust, see our blog article here.

The creation of a Florida special needs trust is essential to protecting the interests of a disabled client who is benefiting from an asset sensitive program. However, some government benefit programs are not asset sensitive. In Florida, many children benefit from “Family-Related Medicaid.” Family Related Medicaid is not asset based, thus children on this program can receive assets without jeopardizing their benefits (subject to Florida’s court approval scheme). Likewise, MediCARE is not subject to an asset limit, although Medicare beneficiaries receiving settlements should be counseled about the prudence of a Medicare Set Aside.

Typically, disabled adults receiving SSI and MediCAID are ideal candidates for a Special Needs Trust. However, clients are often confused or misinformed regarding the exact government programs they are receiving benefits from, so it is important to check for yourself. This can be accomplished by having your client log into the social security website. Our firm is experienced in the creation of Florida special needs trusts and happy to determine your client’s need and eligibility.

If you have questions about a pending settlement or government benefit issue, Florida Probate Law Group is available to help with a Florida special needs trust and provide a free consultation. Call (352) 354-2654 or email cdavid@floridaprobatlawgroup.com for help. We work statewide, usually with no fees or costs upfront.

ERISA liens on child settlements are not always required to be paid, and our firm is here to help. At Florida Probate Law Group, we strive to deliver child injury settlements free from unnecessary liens in order to maximize your client’s recovery. Burdensome ERISA liens in child injury cases are vulnerable to being negated through settlement apportionment during the local court approval process. Federal courts have recognized the authority of state probate courts to protect child injury settlement funds, even when healthcare providers argued lien preemption based on strong subrogation language within the subject ERISA plan. See In The Matter of the Guardianship of O. D. v. The Ashley Healthcare Plan, No. 3:2011cv00146 – Document 17 (N.D. Miss. 2013); Bauhaus USA, Inc. v. Copeland, 2001 WL 1524373 (N.D. Miss. Mar. 9, 2001).

Healthcare providers seeking to enforce liens in federal court have even been forced to pay attorney’s fees after having their actions dismissed. In 2015, the Mississippi Supreme Court allowed attorney’s fees to be levied against a healthcare provider for their frivolous federal action to enforce an ERISA lien that had been negated by the local probate court. In the Matter of the GUARDIANSHIP of O.D., A Minor: Ashley Healthcare Plan v. Michael DILLARD and Kimberly Dillard, 177 So.3d 175 (2015). The thought of a healthcare provider seeking enforcement of an ERISA lien in federal court, only to wind up with an bill for the defendant’s attorney’s fees, will give pause to future lien holders in the same scenario.

Injured children and their attorneys should be encouraged by the limitation of ERISA preemption by federal courts. State probate courts wield the power to diminish or erase ERISA liens in child injury cases. In the court approval phase of a child injury case, Florida Probate Law Group will always seek an order apportioning the minor’s settlement to the maximum advantage of the minor. Our firm works statewide, on a flat fee basis, with no fees or costs up front. Click here for a breakdown of child injury rules in Florida. Should you have a question about a specific case, call (352) 354-2654 or email cdavid@floridaprobatelawgroup.com.

Special Needs Trusts for Injury Settlements – Eligibility

For an individual to be eligible for a special needs trust in Florida, they must be under 65 years old and disabled as defined in as defined in section 1614(a)(3) of the Social Security Act. For clients over the age of 65, a Pooled Trust under 42 USC 1396p(d)(4)(c) is appropriate. Here, we will address trusts for individuals under 65 funded through a personal injury settlement. In considering whether a client is disabled, the Social Security Act informs us that disabled means “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” Fortunately, this determination has already been made in most cases. Any client receiving SSI benefits in Florida has been determined as disabled under this definition.

Once it has been determined that a client is eligible, a trustee must be selected. Typically a family member will fill this role, however a professional trustee should be utilized when there is not a friend or family member who can be counted on to diligently and responsibly administer the trust. It must me imparted to the trustee that spending trust funds on ineligible expenses will jeopardize all trust assets. Upon the death of the client/settlor, Medicaid will hold a lien over trust assets for the amount expended by Medicaid on services for the settlor during their lifetime. The amount of this lien will be far less than the settlor would have paid for the same medical services out of pocket, as Medicaid receives an approximate 40% discount on medical bills relative to an individual consumer.

The primary tenants of a “self settled” injury settlement Special Needs Trust are as follows:

1. The trust is designed as a special needs trust pursuant to 42 U.S.C. Sec. 1396p (d)(4)(a) and that it is for a disabled person under age 65.
2. That the intent of the settlor is to allow eligibility for ongoing public assistance including SSI or Medicaid.
3. That the intent is to “supplement” and not “supplant” public benefits.
4. That distributions may be made in the trustee’s sole discretion for maintaining the quality of the beneficiary’s health, education, safety and welfare when they are not being provided by ongoing public assistance.
5. That the trustee will repay all state Medicaid bills upon termination of the trust provided they may pay other estate expenses first.

Florida Probate Law Group has experience establishing Special needs trusts for for Medicaid beneficiaries to protect settlement proceeds. We work statewide supporting plaintiffs firms in probate, guardianship, special needs planning, and lien defense. Call (352) 354-2654 or email cdavid@circuit8law.com if you have questions about an issue affecting a settlement.

Child settlements requiring a guardian ad litem in Florida can slow down the resolution of a case, however it is possible to have this requirement waived. In many child injury claims, it is within the court’s power to require a guardian ad litem to submit an opinion on the adequacy of a proposed settlement. While the intention of this rule is good, securing a GAL report may be redundant and can sometimes be avoided. Although Florida Statute section 744.3025(1)(b) provides that a guardian ad litem (GAL) is to be appointed when a minor’s settlement equals or exceeds $50,000.00, section 744.3025(1)(e) dispenses of the requirement if a guardian of the minor is appointed and the guardian has no potential adverse interest.

Because minor settlements netting more than $15,000.00 to the minor already require a guardian of the property (a different role than a GAL) to be appointed, the exception contained in section 744.3025(1)(e) is applicable more often than not. Section 744.3025(1)(e) reads as follows: “A court need not appoint a guardian ad litem for the minor if a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor. A court may appoint a guardian ad litem if the court believes a guardian ad litem is necessary to protect the interests of the minor.”

Thus, when a guardian of the property with no adverse interest to the minor is appointed to facilitate the settlement, the court may waive the requirement for a GAL.

Florida Probate Rule 5.636(d) supports this interpretation of the statute stating that a GAL shall be appointed when the settlement exceeds $50,000.00, “IF (a) there is no court appointed guardian of the minor; (b) the court appointed guardian may have an adverse interest; OR (c) the court determines the representation of the minor is otherwise inadequate.”

In determining whether the guardian of the property has a conflict of interest, we must ask if that guardian would benefit in any way from accepting an inadequate settlement on behalf of the minor. The most common conflict of interest is when the guardian of the property has their own claim arising from the same incident as the minor’s claim (typically when the guardian of the property is a parent). In such a case the guardian and the minor may divide a limited pool of settlement funds. In such a case, a GAL should be appointed.

For more information on child settlements, see our child injury flowchart here.

If you have questions about guardianship issues affecting your settlements, call (352) 354-2654 or email cdavid@floridaprobatelawgroup.com.

Florida law protects “homestead” property from creditors both during the owner’s lifetime and after their death. Article X section IV of the Florida Constitution provides that individuals may own on piece of real property within the state immune from forced sale. This protection inures to the heirs of the property owner, effectively protecting a piece of family property indefinitely for future generations. To qualify for this exemption, the parcel, if located within city limits, must be no larger than one half acre. Outside of a municipality, the parcel may be as large as 160 acres.

While the homestead exemption is an extremely strong form of asset protection, it does not apply to taxes, mortgages, or construction liens. If the property owner has a spouse or minor children, the property cannot be devised (given away in a will) except to the spouse and then, only if the owner has no minor children outside the marriage. A property need not be designated as “homestead” for tax purposes the fall under the umbrella of constitutional protection.

In probate proceedings, we submit a pleading to the court titled “Petition for Determination of Homestead Status,” which, when signed by the circuit judge, gives notice to all that the property is off limits to creditors and simultaneously transfers title to the lawful recipients to the property.

If you have questions about homestead protections, call us at (352) 354-2654, or email cdavid@circuit8law.com.

Personal Representatives of Florida estates are officers of the court relied upon to achieve three principle ends:

1. Pay Estate Debts
2. Distribute Estate Assets to Beneficiaries and Heirs
3. Litigate on behalf of the Estate

In administering the estate of a decedent, the personal representative is bound by fiduciary duty to the estate beneficiaries, and required by the court to file paperwork through an attorney. Below is a thorough breakdown of the specific qualifications and procedural tasks associated with serving as a Personal Representative in Florida:

Becoming Personal Representative

If a decedent left a Will, the person nominated therein will have preference to serve as personal representative. If a decedent had no will, Florida Statute 733.301 provides that the decedent’s spouse is given preference, followed by the person nominated by the majority of heirs, followed by the closest relative.

The proposed personal representative must file a Petition for Administration with the Circuit Court, and take an oath to lawfully administer the estate. If the personal representative is accepted, they are issued Letters of Administration which give power over all of the decedent’s assets.

Courts sometimes require that a Personal Representative pay a bond. A bond is a financial guarantee that the personal representative will fulfill their obligations to the beneficiaries. Bond’s for personal representatives can be purchased from bond companies for a fraction of the bond amount. Our firm typically requests that bond be waived, but certain counties strictly require a bond.

Administering the Estate Serve Notice of Administration Florida Statute 733.212 requires the personal representative to promptly send out a “Notice of Administration,” which gives details on how the estate is going to be administered under Florida law and what someone should do who has an objection to it. The personal representative must serve a copy of the notice of administration on specific interested persons who are known to the personal representative, including the decedent’s surviving spouse, beneficiaries, the trustee of any trust described in s. 733.707(3) and each qualified beneficiary of the trust as defined in s. 736.0103, and persons who may be entitled to exempt property.

Take Inventory

The personal representative has the job of locating, identifying, securing, and determining the approximate value of estate assets.

Properly Open Safe Deposit Box

There are specific requirements to take inventory of contents in a safe deposit box leased, or co-leased by the decedent. Florida Statute 733.6065. Namely, the safe-deposit box must be opened in the presence of two of the following persons: an employee of the institution where the box is located, the personal representative, or the personal representative’s attorney of record. Each person who is present must verify the contents of the box by signing a copy of the inventory under penalties of perjury. Within 10 days of taking inventory, the personal representative must file the safe-deposit box inventory, along with a copy of a box entry record from a date which is 6 months prior to the date of inventory.

Secure Property of the Decedent Florida Statute 733.607 charges the personal representative with possession and control of the decedent’s property. The personal representative must act reasonably to manage, protect, and preserve assets of the estate until distribution and may maintain an action to recover possession of property or to determine the title to it. It is important to note that the personal representative must relinquish control and possession of real property determined by court order to have homestead status.

Creditors Serve Notice to Creditors

Every personal representative must notice creditors under s. 733.2121, unless claims are barred by s. 733.710. Florida Statute 733.701. The personal representative has the job of publishing a Notice to Creditors in the newspaper to let those who have a right to be paid for debts incurred by the decedent, file their claims with the estate. Florida Statute 733.2121. The personal representative also has to track down “reasonably ascertainable” creditors and let them know the time frame for filing their claims for payment. If there are claims that do not seem right, the personal representative has to challenge them by filing an objection.

The statute also requires: if a decedent at the time of death was 55 years of age or older, the personal representative shall promptly serve a copy of the notice to creditors and provide a copy of the death certificate on the Agency for Health Care Administration within 3 months after the first publication of the notice to creditors, unless the agency has already filed a statement of claim in the estate proceedings. Florida Statute 733.2121 Payment of Claims

Estate assets must be used to satisfy all claims that are not successfully objected to. Generally, the personal representative must pay all valid creditor claims within one year of the first publication of notice to creditors. Florida Statute 733.705.

Taxes

It is the personal representatives responsibility to file final tax returns for the estate. Florida Statute 733.817. Depending on the size and complexity of the estate, as well as the skill set of the personal representative, it may be advisable to call in an expert to assist in this process. The personal representative has to pay any taxes due and owing as well as prepare and file final tax returns for the estate. See, e.g.: Apportion Estate Taxes.

Getting Help

It is within the personal representative’s discretion to hire experts to assist him or her in fulfilling his or her fiduciary duties. Often, contentious estates will require the use of appraisers to verify values of property. Whereas an estate with tax issues, may require the personal representative to hire a Certified Public Accountant. Similarly, it may be necessary to have more than one law firm involved – a probate attorney to handle the estate administration, and a personal injury attorney to pursue a wrongful death claim or finalize an unsettled personal injury claim.

Distributing the Estate Assets Deliver Devises and Distributive Share of the Estate

Once the personal representative has paid valid creditors and expenses associated with the estate administration (including attorney’s fees, costs, storage expenses, mortgages on estate property, insurance, etc.), distribution can be made to beneficiaries or heirs. The personal representative must make distribution according to the provisions of the decedent’s Last Will and Testament. If the decedent did not have a will, then the personal representative must make distribution to the persons entitled by Florida statute. Florida Statute 733.801. Honor Private Contracts Among Interested Persons

Interested persons have the right to alter their interests, shares, or amounts of entitlement to estate assets by written contract, subject to the rights of creditors and taxing authorities. The personal representative has an obligation to honor these written agreements, per Florida Statute 733.815.

Closing the Estate

Now that the personal representative has properly accounted for estate assets, paid valid creditors, settled pending litigation, and distributed estate property to the appropriate beneficiaries or heirs, the estate may be closed. Failure to complete this final step prevents the personal representative from being relieved of liability. Florida Statute 733.901.

Personal Representatives and Probate Litigation

Wrongful death cases and other claims made on behalf of an estate, are spearheaded by the personal representative. The personal representative is responsible for retaining attorneys, accepting settlements, and signing pleadings on behalf of the estate.

If you have a question about probate, call us today at (352) 354-2654.