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

In Florida, an asset must go through probate when it was titled in the decedent’s sole name with no beneficiary, joint owner, or trust attached to it at the moment of death. Everything else — accounts with a named beneficiary, jointly held property with survivorship rights, and assets owned by a living trust — passes outside probate by operation of law or contract. So the dividing line is not what the asset is; it is how the asset was titled and designated on the day the owner died.

That distinction trips up more Palm Beach families than any other. People assume a will controls everything they own. It does not. A will only governs the probate estate, and the probate estate is often a much smaller slice of the whole picture than the heirs expect. Below is how a Florida probate attorney actually sorts these assets — and why the answer matters enormously when creditors come calling.

What “going through probate” actually means in Florida

Probate is the court-supervised process of identifying a decedent’s assets, paying valid debts and taxes, and distributing what remains to the people entitled to it. In Florida it runs through the circuit court in the county where the decedent lived — for our clients, that is the Probate Division of the Fifteenth Judicial Circuit in Palm Beach County. The process is governed by Chapters 731 through 735 of the Florida Statutes, collectively the Florida Probate Code.

Here is the piece most people overlook: probate is also the doorway through which creditors get paid. When an estate is formally administered, the personal representative must publish a Notice to Creditors and serve known or reasonably ascertainable creditors directly. Under Florida Statute § 733.702, those creditors generally have until the later of three months from first publication or thirty days from service to file a claim, and § 733.710 imposes a two-year absolute bar measured from the date of death. Miss the window and the claim is usually dead.

That timing engine is exactly why titling matters so much. Assets that avoid probate generally avoid that orderly creditor-claims process too — which can be a feature for heirs and a problem for unpaid creditors. We come back to that tension throughout this article, because on the estates we handle in Palm Beach, the creditor side is rarely an afterthought.

Assets that must go through probate

An asset lands in the probate estate when it was owned by the decedent alone and had no built-in mechanism to transfer on death. The most common probate assets we see are:

• Solely owned real estate — a home, condo, or vacant lot titled only in the decedent’s name, with no co-owner holding survivorship rights and no transfer-on-death deed (Florida does not recognize TOD deeds for real property, a frequent surprise for clients moving here from other states).
• Individual bank and brokerage accounts with no payable-on-death (POD) or transfer-on-death (TOD) beneficiary named.
• Vehicles, boats, and titled personal property registered solely to the decedent.
• Business interests — a sole proprietorship, or shares in an LLC or corporation held individually with no operating-agreement transfer provision.
• Personal effects of value — jewelry, art, collectibles, furnishings — that were not specifically gifted through a trust.
• Life insurance or retirement accounts that name “my estate” as the beneficiary, or whose named beneficiary died first with no contingent named. A beneficiary designation pointing back to the estate pulls an otherwise-exempt asset straight into probate.

That last point deserves emphasis. A life insurance policy is a contract that normally pays a named human directly and skips probate entirely. But name your estate, or let the only named beneficiary predecease you, and the proceeds become a probate asset — fully exposed to creditor claims that the policy would otherwise have escaped. We see this go wrong on roughly one estate in five.

Assets that skip Florida probate

Non-probate assets transfer the instant the owner dies, by contract, by titling, or by the terms of a trust — no judge, no Notice to Creditors, no personal representative required to move them. The major categories:

Assets with a named beneficiary

Life insurance, annuities, IRAs, 401(k)s and other qualified retirement plans pay directly to the beneficiary on the form. So do POD bank accounts and TOD brokerage accounts. The custodian needs a death certificate and a claim form, not a court order. These designations override your will every time, which is why a stale beneficiary form — an ex-spouse still listed on a 401(k), for instance — causes some of the most painful disputes we litigate.

Jointly titled property with right of survivorship

Property held as joint tenants with right of survivorship or, between spouses, as tenancy by the entirety passes automatically to the surviving owner. The decedent’s interest simply evaporates at death and vests in the survivor. Note the contrast with tenancy in common: there is no survivorship there, so the decedent’s fractional share does go through probate. A married couple’s Palm Beach homestead held by the entirety is the classic non-probate asset — it passes to the surviving spouse outside court and, importantly, beyond the reach of the deceased spouse’s individual creditors.

Assets owned by a revocable living trust

Property you transfer into a properly funded revocable living trust is owned by the trust, not by you individually, so it never enters your probate estate. The successor trustee distributes it under the trust’s terms. This is the workhorse of probate avoidance in Florida — but only if the trust is actually funded. An unfunded trust with assets still titled in your individual name accomplishes nothing; those assets go through probate anyway, and the trust document sits in a drawer doing no work. Funding is where most do-it-yourself estate plans fail.

Florida homestead

The homestead is its own animal. Under Article X, Section 4 of the Florida Constitution, a decedent’s homestead passes to heirs largely shielded from the claims of general creditors and, in most cases, outside the probate estate for distribution purposes — though a court order (a petition to determine homestead status) is often still filed to confirm the protection and clear title. Homestead is one of the strongest creditor shields in the country, and it routinely keeps the family home out of the reach of medical and credit-card creditors entirely.

The creditor angle: why “skipping probate” is not the whole story

Here is where Palm Beach families often get a hard lesson. Avoiding probate is not the same as avoiding creditors. Two realities cut against the comfortable assumption that non-probate assets are untouchable:

First, certain non-probate assets remain reachable. A revocable living trust does not shield assets from the settlor’s creditors at death. Florida Statute § 736.05053 makes a deceased settlor’s trust liable for the expenses of administration and enforceable creditor claims to the extent the probate estate is insufficient. In plain terms: creditors who would have been paid in probate can reach into the trust when the probate estate runs dry. The trust avoids the process, not necessarily the liability.

Second, some non-probate assets are genuinely protected — and that protection is the planning. Florida law shields the cash surrender value of life insurance and the proceeds payable to a named beneficiary (Fla. Stat. § 222.13 and § 222.14), most qualified retirement accounts, annuity contracts, and homestead from the claims of the insured’s or owner’s creditors. Routing wealth through these channels rather than the probate estate is a legitimate, statute-backed strategy. The flip side, as noted above, is that the moment you point one of these at “my estate,” you hand it to the creditors.

For estates burdened by debt — outstanding medical bills, a nursing-home lien, guarantor obligations, disputed business debts — the difference between a probate asset and a protected non-probate asset can be the difference between heirs inheriting something and inheriting nothing. This is precisely the analysis we run first on every creditor-heavy estate that walks through our door. For a deeper look at how these disputes unfold once the estate is open, Morgan Legal’s New York team has a clear breakdown of that maps closely onto what we see in Florida courtrooms.

What is exempt even within probate

Even when an asset technically passes through probate, Florida carves out protections for the surviving spouse and children that sit ahead of creditors. Under Florida Statute § 732.402, the surviving spouse (or, if none, the decedent’s children) may claim certain exempt property — household furniture and appliances up to a statutory value, two motor vehicles, and certain education and death benefits — free of creditor claims. The spouse may also be entitled to a family allowance under § 732.403 of up to $18,000 during administration, and to elect against the will via the elective share under §§ 732.201–732.2155.

These entitlements are powerful, but they are not automatic. Exempt property in particular must be claimed by petition, generally within four months of service of the Notice of Administration, or the right is waived. Families who do not have counsel watching the calendar lose these protections all the time.

The simplified paths: when full probate is not required

Not every probate estate requires full formal administration. Florida offers two streamlined routes, both in Chapter 735:

1. Summary administration (§ 735.201): available when the value of the probate estate, excluding property exempt from creditors, does not exceed $75,000, or when the decedent has been dead for more than two years. Past that two-year mark the dollar cap disappears entirely, because the § 733.710 two-year creditor bar has already run.
2. Disposition of personal property without administration (§ 735.301): the narrowest path, reserved for tiny estates with no real property, where the only non-exempt assets do not exceed the sum of final funeral expenses and the decedent’s last-illness medical bills from the prior 60 days.

Both are faster and cheaper than formal administration, but neither is a free pass on debts. In summary administration, the petitioners can become personally liable to creditors up to the value of the assets they received — so on a debt-heavy estate, the “simple” route can quietly transfer the creditor problem onto the heirs. We weigh that exposure carefully before recommending it.

A quick way to map your own estate

Want a rough self-audit before you call a lawyer? Walk asset by asset and ask three questions:

• Is there a living beneficiary named on it? If yes — insurance, IRA, POD/TOD account — it skips probate.
• Is it jointly owned with survivorship, or owned by my funded trust? If yes, it skips probate.
• Is it in my name alone with nothing attached? If yes, it goes through probate — and is exposed to creditors.

Anything that answers “yes” to the third question is your probate estate. If that pile is large and your debts are larger, that is the conversation to have with a probate attorney sooner rather than later. Disputes over a will only deepen the problem; Morgan Legal explains the mechanics well in its overview of , and Florida’s contest grounds — undue influence, lack of capacity, improper execution — closely parallel them.

Talk to a Palm Beach probate attorney

The titling decisions you make today decide which of your assets a judge — and your creditors — will touch tomorrow. On creditor-heavy estates especially, a small change in how an account is designated can shield a family home or a child’s inheritance. Our firm handles Florida probate and creditor-claim defense throughout Palm Beach County, and our colleagues at Morgan Legal cover statewide. If you are an executor facing claims, or simply want to keep more of your estate out of court, contact our office for a consultation. You can also review our guidance on wills and what they do and do not control before you sit down with us.

Frequently Asked Questions

Does a will keep my assets out of probate in Florida?

No. A will does the opposite — it only operates inside probate. A will names who should receive your solely owned probate assets and who should serve as personal representative, but those assets still pass through the court process. To skip probate you need non-probate mechanisms: named beneficiaries, joint titling with survivorship, or a funded revocable living trust.

Do life insurance proceeds go through probate in Florida?

Usually not. Life insurance pays directly to the named beneficiary and bypasses probate, and under Florida Statutes 222.13 and 222.14 the proceeds are generally protected from the insured’s creditors. The exception is when the policy names the estate as beneficiary, or the only named beneficiary died first — then the proceeds fall into the probate estate and become exposed to creditor claims.

Can creditors reach assets that avoid probate?

Sometimes. A revocable living trust avoids the probate process but not the liability — under Florida Statute 736.05053, a deceased settlor’s trust must pay valid creditor claims when the probate estate is insufficient. By contrast, homestead, most retirement accounts, annuities, and properly designated life insurance enjoy genuine statutory protection from the decedent’s creditors.

What is the asset threshold for summary administration in Florida?

Summary administration under Florida Statute 735.201 is available when the probate estate, excluding property exempt from creditors, does not exceed $75,000 — or when the decedent has been dead for more than two years, in which case the dollar cap no longer applies because the two-year creditor bar has run.

Is a jointly owned home part of the probate estate in Florida?

It depends on how the joint ownership is titled. Property held as joint tenants with right of survivorship, or as tenancy by the entirety between spouses, passes automatically to the surviving owner and skips probate. Property held as tenancy in common has no survivorship, so the decedent’s fractional share does go through probate.