What Is Exempt From Probate in Florida?

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By Gary M. Landau, Esq.

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What Is Exempt From Probate in Florida?

Determining whether an estate needs a Florida probate after someone dies, as well as calculating the value of the probate assets, can be confusing. Bank and investment accounts, real estate, vehicles, and other assets may be treated differently depending on how they’re owned and whether certain paperwork was filled out while the person was alive.

In addition, Florida law protects certain property from creditors of the estate, even when a probate is necessary.

Knowing what is exempt from probate–and what “exempt” actually means under Florida probate law–can help you determine which assets require probate, which do not, and which receive special protections from creditors.

For more than 25 years, the LAW OFFICE OF GARY M. LANDAU, P.A. has handled numerous Florida probate cases for clients across the state of Florida. Call (954) 979-6566 or complete our online form to schedule a no-cost consultation by phone, Zoom, or in person.

At-a-Glance Summary

  • Florida law distinguishes between assets that do not require probate and those that do, as well as those that receive protections from estate creditors.
  • Non-probate assets include those with specific beneficiaries previously designated, including POD and TOD accounts, as well as certain real estate and funded trust assets.
  • A person’s primary home, known as homestead, is shielded from creditor claims with limited exceptions under the Florida Constitution.
  • Exempt property under Florida Statutes § 732.402 that does not require probate includes household furniture up to a net value of $20,000 as well as two vehicles, but the family must typically petition the court to claim this.
  • Exempt assets do not count when figuring the size of an estate to see if it falls under the $150,000 limit to probate the estate as a summary administration.

What Does “Exempt From Probate” Mean in Florida?

Probate is the court-supervised legal process of settling a deceased person’s estate,. It involves identifying assets, paying valid debts, and ultimately distributing the person’s money and belongings to beneficiaries. Assets described as “exempt from probate,” by contrast, pass to family or friends without going through that probate process. Note that Florida law also uses the term “exempt property” for certain assets that are protected from estate creditors, even when a probate is necessary.

In sum, when it comes to probate there are four categories of assets:

  • Probate assets, which do need to go through probate, count towards an estate’s total value, and are not given special protections.
  • Non-probate assets, which pass directly to a named beneficiary or surviving owner without going through probate. This includes life insurance with a named beneficiary, brokerage and bank accounts with specific post-death designations, and real estate that is deeded in certain ways, such as those with survivorship rights.
  • Protected homestead, which means the person’s qualifying primary residence, receives special protection under the Florida Constitution. Estate creditors cannot tap its value to pay what is owed them, with limited exceptions.The probate court may need to confirm its status as homestead property.
  • Exempt property, which includes certain household belongings, personal vehicles, and other assets that Florida law protects from estate creditors for a surviving spouse or qualifying children. Claiming them generally requires filing documents with the court.

Here are more details about these categories, including what families may need to do to access them.

Non-Probate Assets That Pass Outside Probate

Non-probate assets in Florida transfer directly to a new owner immediately after a death. They do not require a probate for this to happen.

Life Insurance Proceeds

Life insurance proceeds go directly to the beneficiary or beneficiaries named in a policy. Florida law generally shields these payments from the insured person’s creditors. The primary exception is where the policy is not left to an individual but instead to the insured’s estate, in which case the proceeds do become part of the probate and the personal representative administers the funds like all other probate assets (Florida Statutes § 222.13).

Retirement Accounts

IRAs, 401(k)s, and other retirement accounts typically pass directly to a beneficiary that had been designated by the owner while they were alive, without probate. If no designated beneficiary is alive at that time, the account’s terms and plan rules determine who gets the funds. As with life insurance, an account payable to the deceased person’s estate does become a probate asset.

Payable-on-Death and Transfer-on-Death Accounts

Bank accounts with one or more persons named on the account as a payable-on-death (POD) designation, as well as brokerage accounts or securities with a similar, transfer-on-death (TOD) declaration pass to those named beneficiaries without  probate. Beneficiaries claim the funds by presenting a certified death certificate and their personal identification to the institution.

Joint Ownership With Survivorship Rights

Jointly held real estate can pass to the surviving owner without a probate when the property is titled in certain ways. For example, joint tenancy where the deed specifically states the “right of survivorship” allows the other person to immediately claim complete control. Married couples can also hold property “as tenants by the entirety,” a form of ownership that makes each spouse a full owner, so no probate is needed.

Deeds listed as “tenancy in common,” by contrast, mean each owner holds a separate share. The deceased owner’s share must then be probated.

Revocable Trust Assets and Lady Bird Deeds

Assets titled in a funded revocable trust pass under the trust terms, meaning the named successor trustee generally takes over the trust right away, no probate required. However, many people neglect to put every single one of their assets in the trust. When a home, bank account, or other asset is in the deceased person’s name, with no beneficiary or surviving owner designation, those items must go through probate.

Note that trust assets can be accessed to cover debts and administrative costs from the estate when the probate assets can’t cover them (Florida Statutes § 733.707(3)).

While they are alive, many people today also sign an “enhanced life estate deed,” colloquially known as a Lady Bird deed. Here an owner keeps control of their real estate during their lifetime, but names the person or people who will own it at their death. These effective and increasingly popular deeds allow a home to pass to surviving heirs right away, without probate.

Is Florida Homestead Property Exempt From Probate?

A Florida resident’s primary home is treated differently from all other assets. Under Article X, Section 4 of the Florida Constitution, it is afforded special treatment compared to other assets. While the person is living, this “homestead property” cannot be forced into sale by creditors (except by the government for property taxes and assessments or by debts for buying, improving, or repairing the home or for labor performed on it). When the homeowner dies, these protections pass to the surviving spouse or heirs. This means that a protected homestead in Florida cannot be forced to pay an estate’s general creditor claims.

In addition, the Florida state constitution also limits who can inherit a person’s primary home. If the homeowner has a surviving spouse or minor child, the owner cannot leave the home to anyone else (Florida Statutes § 732.4015)–even if they designate a different beneficiary in their will.

Only if they have no surviving spouse or minor child can the owner leave their primary home to anyone they choose. In this case though, the home remains protected from the estate’s creditors only if it passes to certain blood relatives, including a child, grandchild, or sibling. This protection ends if the homeowner leaves their property to a friend, distant relative, or to a charity; in that case the estate’s creditors can put a lien on the home.

The probate court typically enters an order documenting homestead status. Title companies often rely on that order to insure the home’s sale, so skipping it can cause problems with a closing.

What Personal Property Does Florida Protect From Estate Creditors?

Florida law protects certain personal belongings and other assets from estate creditors in order to ensure that qualifying family members can keep them. Under Florida Statutes § 732.402, when someone was legally a Florida resident at the time of their death, the surviving spouse (or their  children if there’s no surviving spouse), can acquire the following items without probate:

  • Household furniture, furnishings, and appliances in the person’s home, up to a net value of $20,000 at the time of death.
  • Two motor vehicles that were in the person’s name, regularly used by the person or immediate family as personal vehicles, and each weighing 15,000 pounds gross or less. There is no dollar cap on the value of these vehicles.
  • All qualified tuition programs authorized under section 529 of the Internal Revenue Code, including Florida Prepaid College contracts.

How Exempt Property Protects Your Family

This exempt property is protected from most claims against the estate. A credit card company can’t take your deceased mother’s car, for example, although a lender whose interests appear on the title can do so if payments are not made.

Exempt property is also excluded from the estate’s value before calculating its total worth. This helps to determine whether the probate can be done as a summary administration or if it requires a formal administration.

Other assets specifically left to a named person in the will are not counted as exempt property under the statute. However, a qualifying spouse or child who receives certain heirlooms can ask the court to protect them from creditors.

The Deadline to Claim Exempt Property

To exempt certain property, a living spouse or adult children must file a petition with a court within four months of receiving a  notice of administration that a probate has begun, or 40 days after the end of any proceeding involving the will’s construction, admission to probate, or validity, or involving anything that affects the property. After that time, this right is waived.

The Florida Family Allowance

Florida probates typically take several months or longer to go through the process. So what happens to families that relied on a family breadwinner after that person dies?

Fortunately, Florida law, under Florida Statutes § 732.403, allows for continued payments from the estate’s assets to a surviving spouse and the parents or children the person was supporting (or was obligated to support, such as with court-ordered child support). This can be a reasonable cash allowance totalling no more than $18,000 throughout the time the probate is open, paid in a lump sum or installments, as approved by the court. In most cases this does not reduce the amount that the spouse or dependents receive when final assets are distributed from the estate.

Which Assets Go Through Probate in Florida

Assets the person owned in their name alone or titled in certain ways that don’t have a beneficiary designation or another direction to transfer ownership at death, must go through probate (unless the asset qualifies as protected homestead). This is the case whether or not the person had a will. A will simply directs who inherits these assets; when someone dies without a will, Florida’s “intestate” succession laws determine who gets their things.

Examples of probate assets include:

  • Bank and brokerage accounts held solely in the deceased person’s name without a payable-on-death (POD) or transfer-on-death (TOD) named beneficiary.
  • Real estate that doesn’t qualify as protected homestead that is owned solely by the deceased person or jointly in certain deeded situations. This includes second homes and rental properties in the person’s name.
  • Life insurance and retirement accounts that name the deceased person’s estate as the beneficiary. Recall that most of these accounts name an individual as the beneficiary, in which case they do not count as probate assets.
  • Assets not placed into the person’s revocable trust even if they have one. All assets solely in the deceased person’s name, without another valid way to transfer ownership at death, must be probated to be put into the trust. This is the reason experienced wills, trust, and probate lawyers ensure that trust owners also create what is known as a pour-over will, directing the court to probate their assets and place them in the trust.

How Exempt Assets Affect Summary Administration

Summary administration in Florida is one of the prime ways estates go through probate. This avenue, which is typically faster and less expensive than formal administration, is available when the estate subject to probate administration in Florida (minus property exempt from creditor claims) is worth $150,000 or less, or when the person died more than two years ago (per Florida Statutes § 735.201). This $150,000 limit for most estates took effect for deaths on or after July 1, 2026; most estates from deaths before that date are subject to the older limit, $75,000.

Exempt assets, protected homestead values, and assets that pass directly to beneficiaries outside of probate are not included in this count. This is why an estate that looks larger on paper may still qualify once all of those assets are subtracted.

Estates that do not meet this threshold go through formal administration, a process that begins with the court appointing a personal representative to represent the estate.

Very small estates may qualify for yet another option, a disposition without administration. This applies when the person had only exempt personal property and nonexempt personal property worth no more than preferred funeral expenses and medical bills from the last 60 days of their life. An interested person can ask the court to authorize transferring the property for these purposes, per Florida Statutes § 735.301.

Frequently Asked Questions

What assets are exempt from going through probate in Florida?

Many assets a person had before they died pass outside of probate. This includes life insurance and retirement accounts with a living named beneficiary, bank and investment accounts with either pay-on-death or transfer-on-death designees, real estate deeded certain ways, assets in a trust, property with a valid Lady Bird deed, and others. Protected homestead is in its own category: shielded from estate creditors with limited exceptions. Personal property, including household furniture up to $20,000 and two vehicles, is also protected from creditors after the family petitions for it.

Is a house exempt from probate in Florida?

A home that qualifies as a protected homestead because it was the person’s primary, homestead residence is shielded from creditor claims, with limited exceptions. A court order determining homestead status may be needed before it can be sold. Homes that are not homestead property are not exempt  unless the deed signed while the person was alive allows it to pass via survivorship, a trust, or a Lady Bird deed.

Can I keep my parent’s car in Florida?

Up to two vehicles can qualify as exempt property provided they were titled in the person’s name and were regularly used by the person or their immediate family as personal vehicles. The surviving spouse, or the children if there is no surviving spouse, may claim qualifying vehicles by filing a petition within the statutory deadline. This does not require a probate.

Is life insurance ever subject to probate in Florida?

Not usually, because most life insurance is paid directly to the named beneficiary. However, in cases where the life insurance policy is payable to the person’s estate, the proceeds become a regular probate asset.

What happens if no one claims exempt property in time?

After a period of time determined by law, the right of the person to collect that asset, such as household items or vehicles, is waived, and the item is treated as an ordinary estate asset available to pay creditor claims and to be distributed to all beneficiaries according to the terms of the will.

Talk With a Florida Probate Attorney About Your Loved One’s Assets

Separating non-probate assets, exempt property, and probate assets takes careful attention. The Law Office of Gary M. Landau reviews the will, deeds, account designations, homestead status, and date of death to identify which assets pass outside probate, which your family can claim as exempt property, and which go through probate, including the proper Florida probate process that applies.

Call (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We work with our clients in person, by phone, or on Zoom.

The LAW OFFICE OF GARY M. LANDAU, P.A. assists families in Coral Springs, Parkland, Broward County, and throughout Florida. With more than 25 years of experience handling Florida probate cases, attorney Gary M. Landau guides families through summary administration, formal administration, exempt property petitions, and homestead determinations.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

Find Out Which Probate Process Applies to Your Family Member’s Estate

The difference between formal and summary administration affects whether someone has authority to act for the estate, how creditor claims will be handled, and how the assets reach the beneficiaries. The Law Office of Gary M. Landau works with clients to review the will, assets, debts, homestead property, and the date of death to help determine which Florida probate process is best in each situation.

Call (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We work with our clients in person, by phone, or on Zoom.

The LAW OFFICE OF GARY M. LANDAU, P.A. assists families in Coral Springs, Parkland, Broward County, and throughout Florida. With more than 25 years of experience handling Florida probate matters in nearly every county in the state, attorney Gary M. Landau can help you complete a formal administration, summary administration, or another estate procedure based on your family’s circumstances.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://www.garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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