Florida Probate Code

Florida Probate Code Plain-Language Summary Guide

The Florida Probate Code is found in Florida Statutes Title XLII, Chapters 731 through 735. The summary below covers the sections most relevant to Florida elder law and estate planning attorneys, as well as families navigating the probate process on behalf of a loved one. This guide is not exhaustive and some sections have been omitted. It is meant for informational purposes only, as the law and its interpretation may have changed since this article was written. For a full overview of the probate process and how to avoid it entirely through advance planning, read our guide on Florida Medicaid long-term care programs and our dedicated page covering the work of a Florida probate lawyer.

Chapter 731 General Provisions

731.103 Evidence of Death

Acceptable forms of evidence of death include the following.

• An authenticated copy of a death certificate
• A copy of a record or report of a government agency, domestic or foreign, that a person is presumed dead
• Proof that a person has been absent from their last known domicile for over five years and diligent searching cannot explain the absence
• Proof that a person was exposed to a specific deadly peril, which may be used to determine death prior to the five-year period

731.110 Caveat

Any person who has reason to believe that an estate will be administered or that a Last Will and Testament will be admitted to probate without their knowledge may file a caveat with the court. A caveat filed by an interested person (other than a creditor) may be filed before or after death. Creditors may only file caveats after the person has died. When a caveat has been filed by an interested person, the court may not admit a will to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator and they have been given the opportunity to participate in the proceedings.

731.201 Definitions

(Selected definitions most relevant to elder law and estate planning. Some subsections have been omitted.)

Beneficiary means an heir-at-law in an intestate estate or a devisee in a testate estate. A trustee of a trust may be a beneficiary.

Claim means a liability of the decedent arising from contract, tort, or otherwise. This does not include expenses of administration or death taxes.

Curator means a person appointed by the court to take charge of an estate until letters are issued. Letters are the authority granted by the court to the personal representative to act on behalf of the estate, sometimes referred to as letters testamentary or letters of administration.

Devise means a testamentary disposition of real or personal property, that is, how property is disposed of by will or trust.

Domicile means a person's usual place of dwelling, synonymous with residence.

Exempt Property is defined in Florida Statutes 732.402.

Personal Representative means the fiduciary appointed by the court to administer the estate.

Petition means a written request to the court for an order.

Chapter 732 Intestate Succession

(What Happens When You Die Without a Will)

732.102 Spouse's Share of Intestate Estate

If there are no surviving descendants, or if the deceased spouse and surviving spouse share only joint descendants, the entire intestate estate passes to the surviving spouse. If there are one or more surviving descendants who are not lineal descendants of the surviving spouse, those descendants receive half of the intestate estate.

732.103 Share of Other Heirs of Intestate Estate

If part of the estate is not passing to the surviving spouse, or if there is no surviving spouse, the estate descends to the descendants of the decedent. If there are no descendants, it passes to the decedent's parents equally. If no parents survive, it passes to siblings and the descendants of deceased siblings. This section details further contingencies for more remote relatives.

732.2025 Definitions

(Deals with Elective Share of Surviving Spouse. Selected definitions included. Some subsections have been omitted.)

Elective Share Trust refers to a trust where the surviving spouse is entitled for life to use of the property or to all income payable at least annually; the surviving spouse can require the trustee to make the property productive or convert it; and during the surviving spouse's life, no one other than the spouse has the power to distribute income or principal to anyone other than the spouse.

Governing Instrument means a deed, will, trust, insurance or annuity policy, account with a payable-on-death designation, security registered in beneficiary form (TOD), pension, profit-sharing, retirement plan, or an instrument creating a power of attorney.

Qualifying Special Needs Trust (SNT) or Supplemental Needs Trust refers to a trust established for an ill or disabled surviving spouse, with court approval, before or after the decedent's death. A Special Needs Trust (SNT) allows income and principal to be distributed to or for the benefit of the spouse for life at the trustee's discretion. During the surviving spouse's life, no person other than the spouse may receive distributions of income or principal. Court approval must be obtained for the SNT unless the aggregate value of all property in the SNT is less than $100,000.

732.2035 Property Entering Into Elective Estate

The elective estate includes the following.

• The decedent's probate estate
• Accounts or securities registered in pay-on-death, transfer-on-death, in-trust-for, or co-ownership with right of survivorship form
• The decedent's fractional interest in property held jointly
• The decedent's interest in the net cash surrender value of any life insurance policy immediately before death
• Amounts payable to survivors under any pension or retirement plan
• Property transferred during the one year preceding the decedent's death

732.2045 Exclusions to 732.2035

Exclusions include the following.

• Irrevocable transfers made prior to the date of the decedent's marriage to the surviving spouse
• Any transfer for which the decedent received adequate consideration
• Life insurance proceeds in excess of net cash surrender value

732.2065 Amount of Elective Share

The elective share is 30 percent of the elective estate.

732.2085 Liability of Direct Recipients and Beneficiaries

Direct recipients and beneficiaries are liable to contribute toward satisfaction of the elective share in proportion to their respective shares of the liability class.

732.2105 Effect of Election on Other Interests

The elective share is in addition to homestead, exempt property, and allowances as provided in Part IV.

732.2135 Time of Election

The election must be filed by the earlier of six months after service of the Notice of Administration on the surviving spouse, or two years after the date of the decedent's death. Extensions may be granted by the court for good cause within this period.

732.301 Pretermitted Spouse

A pretermitted heir refers to a spouse or child omitted from a will, for example when a testator makes a will with two children and subsequently has a third. When a person marries after making a will and the spouse survives the testator, the surviving spouse receives a share equal to what the spouse would have received had the testator died intestate, unless a prenuptial or postnuptial agreement says otherwise, the spouse is provided for in the will, or the will discloses an intention not to provide for the spouse.

732.302 Pretermitted Children

Similar rules apply to children omitted from a will.

732.401 Treatment of Homestead if Owner Passes Intestate

Treated in the same manner as other intestate property, except that if the decedent is survived by a spouse and one or more descendants, the surviving spouse takes a life estate in the homestead with a vested remainder to descendants living at the time of the decedent's death per stirpes. In lieu of a life estate, the surviving spouse may elect to take an undivided half interest in the homestead as a tenant in common. This election must be made within six months of the decedent's death and during the surviving spouse's lifetime. Once made, the election is irrevocable. Protecting homestead during the Medicaid and estate planning process is one of the most important steps Florida families can take. For a full breakdown of how to do this properly, read our article on protecting your Florida home while qualifying for Medicaid benefits.

732.4015 Devise of Homestead

Homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that homestead may be devised to the owner's spouse if there are no minor children.

732.4017 Inter-Vivos Transfer of Homestead Property

If the homestead property owner transfers an interest in homestead property to an individual or irrevocable trust during their lifetime, the transfer is not a devise, so the homestead property would not descend as described in Florida Statutes 732.401.

732.402 Exempt Property

If the decedent was domiciled in Florida at the time of death, the surviving spouse (or if no surviving spouse, the children of the decedent) has the right to a share of the estate designated as exempt property. Exempt property includes the following.

• Household furniture, furnishings, and appliances in the primary residence up to a net value of $20,000
• Two motor vehicles weighing no more than 15,000 pounds held in the decedent's name and regularly used by the decedent or immediate family
• Florida Prepaid College accounts

Exempt property is exempt from all claims against the estate unless a perfected security interest exists on the property. Exempt property is in addition to homestead, property passing under the will or by intestate succession, and other statutory entitlements. Individuals entitled to exempt property are deemed to have waived their right unless they petition within four months after service of the Notice of Administration, or 40 days after any termination of a proceeding involving admission to probate or validity of the will, whichever is later.

732.403 Family Allowance

In addition to protected homestead and statutory entitlements, the surviving spouse and lineal heirs whom the decedent was supporting or obligated to support are entitled to an allowance paid as a lump sum or in periodic installments not to exceed $18,000 to allow for their maintenance during the administration process.

Part V Wills

732.501 Who May Make a Will

Anyone over age 18 and of sound mind.

732.502 Execution of Wills

All wills must be in writing and signed at the end by the testator, or subscribed at the end by another person in the testator's presence and by the testator's direction if the testator is unable to sign. The testator must sign or be subscribed in the presence of two witnesses. Both witnesses must sign in the presence of the testator and in the presence of each other. Codicils must be executed with the same formalities as a will.

732.503 Self Proof

Provides a self-proving affidavit form used as evidence that the will or codicil was executed in compliance with the requirements above.

732.504 Who Can Witness

Any competent person, whether or not they have an interest in the will.

732.505 through 732.506 Revocation of Will

Subsequent writings that contain inconsistent provisions only revoke and replace those inconsistent sections. A prior will may be revoked in its entirety if the revocation is declared in a subsequent will that is signed with all required formalities. A will can also be revoked by burning, tearing, or destroying it with the intent and for the purpose of revocation.

732.508 through 732.509 Revival

Revoking a will that revoked a prior will does not revive that prior will. However, revoking a codicil does not revoke the original will, and the original will becomes reinstated. Revoking a will revokes all codicils to that will.

732.5165 Effect of Fraud, Duress, Mistake, Undue Influence

Any of these will void a will.

732.517 Penalty for Contesting Wills

Provisions in a will that attempt to penalize any interested person for contesting the will are not enforceable.

732.518

Wills cannot be contested until the testator has died.

732.702 Waiver of Spousal Rights

Rights of the surviving spouse to an elective share, intestate share, pretermitted share, exempt property, family allowance, and preference in appointment as personal representative may be waived wholly or partly, before or after marriage, by a written contract signed by the waiving party in the presence of two witnesses. If the waiver is executed after marriage, each spouse must fairly disclose their estate to the other.

732.901 Production of Wills

The custodian of a will must deposit the will with the clerk of court within 10 days after receiving information that the testator is dead, along with the date of death and the last four digits of the testator's Social Security number.

Chapter 733 Probate Code Administration of Estates

733.101 Venue of Probate Proceedings

Venue for probate is the county in which the decedent was domiciled. If not domiciled in Florida, any county where the decedent held property.

733.103 Effect of Probate

Proves title to the testator's property and that the will was executed by a competent testator, not under duress, mistake, or undue influence.

733.105 Determination of Beneficiaries

Any interested person may petition the court to determine whether they are entitled to receive any part of the estate or, if unclear, what amount.

733.1051(3) Construing of Will

The court considers the plain language of the will. It also considers facts and circumstances surrounding the creation of the will and the testator's probable intent. The court may consider evidence related to intent even if it contradicts the plain meaning of the will.

733.106 Attorney's Fees and Costs

Any attorney who has provided services to an estate may be awarded reasonable fees and costs from the estate. If a part of the estate is insufficient to pay assessed fees, the court may direct payment from a related trust if a pour-over will is involved.

733.107 Burden of Proof in Undue Influence Cases

In proceedings contesting the validity of a will, the burden is on the proponent of the will to establish prima facie evidence of formal execution and attestation. If the self-proving affidavit described in 732.503 is submitted, the burden of proof shifts to the party contesting the will's validity.

Part II Commencing Administration

733.212 Notice of Administration and Filing Objections

The personal representative must serve a copy of the Notice of Administration on the decedent's surviving spouse, beneficiaries, trustees of associated trusts and their qualified beneficiaries, and anyone who may be entitled to exempt property. The Notice of Administration must include the name and file number of the estate, court information, whether the estate is testate or intestate, dates of any wills and codicils, and the name and contact information of the personal representative and their attorney. It must also state that interested persons have three months from the date of service to file objections challenging the validity of the will, the venue, or the jurisdiction of the court, and the deadline for electing to take an elective share. If a will or codicil is subsequently admitted to probate, the personal representative must promptly serve a new Notice of Administration.

733.2121 Notice to Creditors

The personal representative must publish notice to creditors once a week for two consecutive weeks in a newspaper published in the county where the estate is administered. The notice must state that creditors must file claims within the time period described in 733.702 or be forever barred. The personal representative must make a diligent search to determine names and addresses of reasonably ascertainable creditors. If the decedent was 55 years or older, the personal representative must serve a copy of the Notice of Administration with a copy of the death certificate on the Agency for Health Care Administration within three months after first publication of the notice to creditors.

Part III Personal Representative Preference in Appointment and Qualifications

733.301 Preference in Appointment of Personal Representative

(Selected subsections. Some have been omitted.)

For testate estates, the preference order is the personal representative nominated in the will; then the person selected by a majority of persons entitled to the estate; then a devisee under the will as selected by the court based on qualifications.

For intestate estates, the preference order is the surviving spouse; then the person selected by a majority of heirs; then the closest heir.

733.303 Persons Not Qualified to Be Personal Representative

A convicted felon, a person mentally or physically unable to perform the duties, or a person under the age of 18 may not serve as personal representative.

733.304 Nonresidents

Non-Floridians cannot serve as personal representative unless they are a legally adopted child or parent, or a lineal relation of the decedent including a spouse, sibling, aunt, uncle, niece, nephew, or the spouse of any of these relations.

733.308 Administrator-ad-Litem

If an estate must be represented and the personal representative is unable to do so, the court may appoint an administrator ad litem.

Part IV Fiduciary Bonds

733.402 Bond of Fiduciary

Unless the bond requirement is waived by the will or by the court, every fiduciary to whom letters of administration are granted must execute and file a bond.

733.501 Curators

(Updated effective July 1, 2026)

The court may appoint a curator to perform some or all of the personal representative's duties if the personal representative has not yet accepted letters of administration. Under a 2026 amendment to Florida law, a curator may now be appointed when there is a significant danger that estate property will be wasted, mismanaged, or destroyed. This lowers the previous threshold of "great danger" and makes it easier for courts to intervene quickly to protect estate assets. Curators appointed under this standard are also now required to provide periodic reports to the court during their management of the estate.

Part VI Duties and Powers of the Personal Representative

733.602 General Duties

The personal representative's general duty is to settle and distribute the decedent's estate in accordance with the will and the Florida Probate Code as efficiently as possible. The personal representative is a fiduciary who must act pursuant to the standards of care applicable to trustees and is not liable for any act of administration or distribution authorized at the time by the Florida Probate Code.

733.603 Personal Representative Can Proceed Without Court Order

The personal representative may invoke the jurisdiction of the court to resolve questions concerning the estate but can proceed with settlement and distribution without court direction unless a court order is required by the Florida Probate Code.

733.604 Inventories and Accountings

(Selected subsections. Some have been omitted.)

Unless previously filed, the personal representative must file a verified inventory of estate property listing each item in reasonable detail with an estimated fair market value at the date of the decedent's death. Filed inventories, elective shares, and accountings are all confidential. If the personal representative learns of new property not previously disclosed or discovers that a prior description or value is misleading, an amended or supplemental inventory must be filed. Upon written request, the personal representative must provide beneficiaries with a written explanation of how inventory value was determined, including a copy of any appraisal.

733.6065 Opening Safe Deposit Box

The initial opening of a safe deposit box must occur in the presence of designated persons who verify the contents by signing a copy of the inventory. The safe deposit box inventory must be filed with the court within 10 days after the box is opened.

733.607 Possession of Estate

(Selected subsections. Some have been omitted.)

Except as provided in the will, every personal representative has the right to take possession and control of the decedent's property. Tangible personal property or real property, except homestead, may be left with or surrendered to the person presumptively entitled to it unless possession by the personal representative is necessary for estate administration. If, after providing statutory entitlements and devises, the assets are insufficient to pay expenses of administration and obligations, the personal representative may obtain payment from the trustee of a revocable trust as described in Florida Statutes 733.707(3). For families considering how estate assets and real property titles interact with Medicaid eligibility, a Lady Bird Deed can be a valuable planning tool. Learn more on our page covering Lady Bird Deeds in Florida.

733.608 General Power of Personal Representative

(Selected subsections. Some have been omitted.)

All real and personal property of the decedent, except homestead, and all rents and profits from it are assets in the hands of the personal representative for paying devises, family allowances, elective shares, estate and inheritance taxes, claims, charges, and expenses of administration. If property reasonably appears to be protected homestead but is not occupied by anyone who appears to have an interest in it, the personal representative is authorized but not required to take possession for the limited purpose of preserving, insuring, and protecting it for those with an interest. If the personal representative advances funds or incurs obligations to preserve or protect that property, the personal representative is entitled to a lien on the property and its revenues to secure repayment.

733.609 Improper Exercise of Power and Breach of Fiduciary Duty

The personal representative's fiduciary duty is the same as that of a trustee, and the personal representative is liable to interested persons for damage or loss resulting from a breach of that duty.

733.610 Sale and Transactions Involving Conflicts of Interest

Conflict-of-interest transactions are voidable by interested persons unless the interested person has consented after fair disclosure, the will or contract expressly authorizes the transaction, or the transaction is approved by the court after notice to interested persons.

733.612 Transactions Authorized by Personal Representative

The personal representative may take the following actions.

• Perform, compromise, or when proper, refuse to perform on the decedent's contracts
• Convey real estate
• Receive assets
• Invest funds
• Acquire or dispose of assets
• Enter into leases beyond the period of administration
• Abandon property when valueless

733.613 Personal Representative's Right to Sell Real Property

(Selected subsections. Some have been omitted.)

If the personal representative of an intestate estate needs to sell real property, or if the testator has not conferred or the will cannot conveniently provide a power of sale, the property may still be sold in the best interest of the estate. Title only passes when the court authorizes or confirms the sale. If the will provides a specific or general power to sell any asset, the personal representative may sell without court authorization or confirmation.

733.617 Compensation of Personal Representative

(Selected subsections. Some have been omitted.)

The personal representative is entitled to a commission payable from estate assets without court order as compensation for ordinary services, based on the inventory value of the estate and income earned during administration. The commission is presumed reasonable at the following rates.

• 3 percent on the first $1 million
• 2.5 percent above $1 million up to $5 million
• 2 percent above $5 million

Additional compensation is available for extraordinary services including sale of real or personal property, litigation on behalf of or in defense of the estate, tax adjustment proceedings, carrying on the decedent's business, dealing with protected homestead, and any other special services required. Upon petition of any interested person, the court may increase or decrease compensation based on a variety of factors.

733.6171 Compensation of Attorney for the Personal Representative

(Selected subsections. Some have been omitted.)

The attorney for the personal representative is entitled to reasonable compensation from estate assets without court order. Compensation for ordinary services is presumed reasonable per the following schedule.

• $1,500 for estates of $40,000 or less
• $2,250 for estates over $40,000 up to $70,000
• $3,000 for estates over $70,000 up to $100,000
• 3 percent on amounts between $100,000 and $1,000,000
• 2.5 percent on amounts between $1,000,000 and $3,000,000
• 2 percent on amounts between $3,000,000 and $5,000,000

Additional compensation for extraordinary services may include will contests, proceedings to determine beneficiaries, elective share proceedings, contested claims, apportionment of estate taxes, purchase or sale of real property, and legal advice regarding homestead status.

733.6175 Proceedings to Review Personal Representative's Employment of Agents

The court may review the propriety of employment and reasonableness of compensation of any person hired by the personal representative. The personal representative always bears the burden of proof regarding propriety and reasonableness. Persons found to have received excessive compensation may be ordered to make appropriate refunds.

Part VII Creditors' Claims

733.701 Notifying Creditors

Unless claims are otherwise barred by 733.710, the personal representative must notice creditors by service and publication under 733.2121.

733.702 Limitation on Presentation of Claims

No claim or demand against an estate that arose prior to the death of the decedent is binding on the estate, the personal representative, or a beneficiary unless filed in the probate proceeding on or before the later of three months after the first publication of notice to creditors, or 30 days after the date of service on the creditor, whichever is later. The personal representative may settle any claim in full without the necessity of the claim being filed if settlement is approved by interested persons. This section does not prevent proceedings to enforce any mortgage, security interest, or other lien on estate property.

733.705 Payment of Claims and Objection to Claims

(Selected subsections. Some have been omitted.)

The personal representative must pay all claims within one year of the date of first publication to creditors, unless extended by litigation or the claim is unmatured. The court may extend the time for payment upon a showing of good cause. The personal representative does not need to pay any of the decedent's debts until five months after first publication. The personal representative or any interested party may file a written objection to any creditor claim on or before four months from first publication, or within 30 days from the timely filing or amendment of a claim, whichever is later. If an objection is filed by someone other than the personal representative, the personal representative may apply for an order relieving them from the obligation to defend the estate or may request appointment of the objector as administrator ad litem.

733.707 Priority Order of Expenses and Obligations

The personal representative must pay expenses of administration and obligations of the decedent's estate in the following priority order.

• Class 1 Administration Costs — Costs and expenses of administration, compensation of the personal representative and their attorneys, and court-awarded attorney fees
• Class 2 Funeral Expenses — Reasonable funeral and related expenses not to exceed $6,000
• Class 3 Government Claims — Debts and taxes with claims under federal law, claims under Florida Statutes 409.9101 and 414.28, and claims in favor of the state for unpaid court costs, fees, or fines
• Class 4 Medical Expenses — Reasonable medical and hospital expenses of the last 60 days of the decedent's last illness, including compensation of attendants
• Class 5 Family Allowance — The family allowance as provided under Florida Statutes 732.403
• Class 6 Child Support — Arrearage from court-ordered child support
• Class 7 Business Debts — Debts acquired after death by continuation of the decedent's business, but only up to the value of the assets of that business
• Class 8 All Other Claims — All other claims and judgments against the decedent during their lifetime

After paying a preceding class, if the estate is insufficient to pay the next class in full, creditors in that class are paid ratably in proportion to their respective claims. If a revocable trust exists in the name of the decedent alone or jointly with another person, that trust is liable for expenses of administration and obligations of the estate if the estate cannot pay them as provided in 733.607(2) and 736.05053.

733.710 Limitations on Claims Against Estates

Two years after the death of a person, neither the decedent's estate, the personal representative, nor any beneficiary is liable for any claim or cause of action against the decedent, even if no letters of administration were ever issued, unless the claim was already filed in accordance with this statute. This limitation does not apply to mortgages or security interests.

Chapter 735 Probate Code for Small Estates

Chapter 735 governs the administration of a decedent's estate when the will does not direct administration under Chapter 733 and the total value of the estate subject to administration is $75,000 or less, or the decedent has been dead for more than two years. This simplified process is called summary administration and does not require appointment of a personal representative.

Proper estate planning can often eliminate the need for any probate proceeding, regardless of estate size. Tools including revocable living trusts, beneficiary designations, and Lady Bird Deeds allow assets to pass directly to named beneficiaries without court involvement. For guidance on which tools make the most sense for your family, see our page on essential documents for Medicaid and estate planning in Florida or schedule a consultation with the Florida estate planning attorneys at Elder Needs Law.

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