When a family member dies, many assets owned in the person’s name get stuck in a legal limbo. They don’t belong to the bank or brokerage house holding them, but often they can’t be accessed by their closest relatives. The process of legally transferring assets to beneficiaries is known as probate. Not surprising, many people about to undergo the process ask themselves, “Do I need a probate lawyer?”
The answer is it’s almost always best to have one. Even simple probates can hit speed bumps as the process proceeds, which experienced lawyers are best equipped to deal with. Asset questions, creditor claims, issues regarding homestead laws, and of course family disagreements and other issues can arise, even when using the abbreviated summary administration. Plus, every probate process involves exacting steps that must be followed precisely.
That said, an attorney is not legally required for every probate. In some cases, a beneficiary can file papers on their own.
This blog explains when Florida law demands a probate lawyer, when an attorney may not be absolutely needed, why it’s still often best to use an attorney for most probates, and the differences between formal and summary administration. Call (954) 979-6566 or complete our online form today to schedule a consultation at no cost with the Law Office of Gary M. Landau.
At-a-Glance Overview:
- Florida Probate Rule 5.030 generally requires a personal representative in a probate to be represented by an attorney admitted to practice in Florida.
- An exception applies when the personal representative is the only interested person in the estate. Personal representatives who are attorneys admitted to practice in Florida may also represent themselves.
- Of the two main types of probate, formal administration involves the appointment of a personal representative to administer the estate.
- Summary administration does not require the appointment of a personal representative. In certain situations, therefore, it can be successfully completed without a probate attorney.
- More estates qualify for the faster and easier summary administration now that, effective for deaths after July 1, 2026, Florida increased the asset-value threshold for summary administration from $75,000 to $150,000. Summary administration may also be available when the decedent has been gone for more than two years.
Is a Probate Lawyer Required in Florida?
The law does require use of a probate lawyer for many Florida probate proceedings. Under Florida Probate Rule 5.030, every personal representative in a formal administration must be represented by an attorney admitted to practice in Florida.
There are a few exceptions, such as if the personal representative is the only “interested person” in the estate or if the personal representative themselves are Florida attorneys. Interested person in this case means a beneficiary, heir, creditor, or another person who may reasonably be expected to be affected by the outcome of a particular probate.
Suppose a father leaves probate assets to his three children and one child is appointed personal representative. That child is not the only interested person, since his siblings also have an interest in the estate. In this case, the personal representative would need to hire a Florida probate attorney.
If the child is the man’s sole living relative, however, and the estate doesn’t have any creditors, the personal representative may be the only one with an interest. In this case, they could technically file all the paperwork without a probate lawyer’s involvement.
What Does a Personal Representative Do During Formal Administration?
A personal representative is appointed by the probate court to administer a deceased person’s estate during formal administration in Florida. You may hear this person called an executor in other states, but Florida law uses the term personal representative, or PR.
The personal representative is generally responsible for such tasks as:
- Identifying and protecting probate assets.
- Preparing an inventory of estate property.
- Providing required notices to beneficiaries and creditors.
- Addressing valid creditor claims.
- Managing estate assets while the probate is ongoing.
- Distributing property to the appropriate beneficiaries.
- Completing all steps necessary to close the estate.
These are not simply administrative roles. The personal representative acts in what’s called a fiduciary capacity, meaning they have legal responsibilities to the estate and interested parties to do the job right. The probate attorney representing the personal representative throughout the formal administration provides guidance for each of the steps as they are carried out.
Can You File a Summary Administration Without a Lawyer in Florida?
Summary administration in Florida is a more simplified form of probate that may be available when an estate meets the requirements established by Florida law.
Florida law generally does not require the appointment of a personal representative in a summary administration, so the attorney requirement that applies to personal representatives does not affect a summary administration. Still, the steps involved in a summary administration can be complex and confusing. Having an experienced attorney ensures unnecessary mistakes and delays are avoided.
More estates now qualify for the faster and easier summary administration due to a change in the law. People who die on or after July 1, 2026 are subject to the new valuation of probatable estates for determining when a summary is allowed. Deaths after that date are subject to summary administration in Florida when probatable assets do not exceed $150,000. (The prior limit was $75,000.) An estate may also qualify when the person passed away more than two years prior, even when their asset value is higher.
The increase from $75,000 to $150,000 of probatable assets means more Florida estates may be able to use summary administration. However, qualifying for summary administration does not mean there are no legal questions to address.
Suppose a deceased person owned a Florida home, a bank account without a beneficiary designation, and personal property. Before filing, someone may need to determine which property is part of the probate estate, whether the home qualifies as protected homestead property, who may be legally entitled to receive the assets, and whether creditor issues need to be addressed.
An experienced Florida probate lawyer reviews these and other circumstances to determine whether summary administration is appropriate. Additionally, documents must still be filed with the probate court during a summary administration, which attorneys draft.
In some cases, such as when there are extensive creditors, judges may require a formal probate even if the estate otherwise qualifies for a summary administration.
What Does a Florida Probate Lawyer Do?
A probate attorney’s exact role depends on the estate and the type of probate administration required. In a formal administration, the lawyer represents the personal representative and helps that person comply with the Florida Probate Code, Florida Probate Rules, and applicable court procedures.
A probate lawyer may:
- Help to assess probatable and non-probatable assets to determine whether formal administration is required for a given estate.
- Prepare petitions and other documents for filing with the probate court.
- Assist with the filings that allow the personal representative to be appointed.
- Prepare required notices to beneficiaries and other interested parties.
- Arrange the Notice to Creditors and the publication to creditors.
- Help the client address creditor claims for their validity.
- Advise the personal representative about all facets of estate administration.
- Address issues involving real estate and homestead property (the latter of which is governed by special rules outside of probate).
- Prepare petitions or other filings needed before assets can be distributed.
- Help resolve disputes involving beneficiaries, creditors, or estate property.
- Prepare documents ultimately needed to close the estate.
A lawyer can also determine which assets belong in the probate estate before documents are filed with the court. For instance, the way real estate is titled or the beneficiary designation on a financial account can determine whether that asset needs to be probated.
When Should You Hire a Probate Lawyer?
Even when Florida law does not require an attorney, handling a probate without legal help may not be practical. In an uncontested probate, questions still arise that are difficult to resolve, and court filings can be complex.
You may want to speak with a probate lawyer if:
- You’re unsure whether formal administration or summary administration applies to your specific probate.
- The deceased person owned real estate in Florida, to determine how and when the person’s ownership passes to others.
- There are questions about Florida homestead property.
- The original will cannot be located.
- The decedent died without a will.
- You’re unsure which bank accounts, investment accounts, or other property are probate assets.
- Creditors have made claims against the estate, or you know the person own money to creditors, including hospitals and funeral homes.
- The estate includes complex assets or a business interest.
- Family members disagree about the will or proposed distribution of property.
- There are questions about who the legal heirs or beneficiaries are.
- Disagreements seem unresolvable so probate litigation or estate litigation appears likely.
For example, if someone dies without a will, this does not mean the family can determine among themselves who receives the person’s assets. Instead, when someone dies without a will, or intestate, Florida’s intestate succession laws determine who is legally eligible to inherit probate assets.
Likewise, not everything someone owned necessarily becomes a probate asset. A life insurance policy with a valid beneficiary designation, certain jointly owned property with rights of survivorship, homes with a so-called lady-bird deed transferring title after death, and other assets may pass outside the Florida probate process.
Determining which assets need to go through probate and which do not is an important step in determining which type of probate proceeding can be filed.
How Are Probate Attorney Fees Paid in Florida?
The cost of hiring a lawyer is part of the consultation with an attorney when someone is assessing legal representation. Florida Statute § 733.6171 specifies compensation for attorneys who represent a personal representative in a formal probate. The statute provides a schedule of fees deemed to be reasonable for ordinary services. The amounts are not mandatory, and an attorney and personal representative may agree on a different amount of compensation.
In a formal administration, at least some of the attorney fees for services to the estate are typically paid from estate assets rather than personally by the individual serving as personal representative, subject to the circumstances of the estate and the applicable fee agreement.
Summary administration may involve different legal work because no personal representative is appointed. If you’re considering summary administration, you can discuss the scope and cost of the legal services you need with an attorney before proceeding. Many attorneys use a flat fee when representing a summary administration.
Frequently Asked Questions
Can I probate an estate myself in Florida?
Sometimes. Florida Probate Rule 5.030 requires that a personal representative be represented by a Florida attorney, unless the personal representative is the only interested person. Summary administration does not involve the appointment of a personal representative and may legally be handled without an attorney. Whether proceeding without legal representation is practical or wise depends on the estate, but in many cases an attorney is helpful.
Do I need a probate lawyer if there is a Will?
Having a valid will does not eliminate the need for probate or the attorney requirement that may apply. Any assets titled solely in the deceased person’s name without another means of transfer likely require a probate. In formal administration, the personal representative must be represented by a Florida attorney unless an exception applies, regardless of whether the person did or did not have a will.
Do I need a lawyer for summary administration in Florida?
Florida law does not require an attorney in every summary administration. However, questions about eligibility, probate assets, creditors, homestead property, the identity of beneficiaries, and all the legal paperwork required typically makes legal guidance valuable even when not legally required.
What happens if someone dies without a Will in Florida?
When a Florida resident dies without a valid will, the person is considered to have died intestate. Florida Statutes §§ 732.102 and 732.103 determine how probate assets pass to a surviving spouse and other heirs based on the decedent’s family circumstances. Dying without a will does not mean that probate is avoided.
Who pays the probate lawyer in Florida?
In a formal probate administration, at least a portion of the attorney fees for services to the estate is generally paid from estate assets, although the amount and payment arrangement depend on the circumstances and fee agreement. Florida law allows attorneys to charge a particular statutory fee based on the value of the estate, which is generally done for estates requiring formal administration. Estates undergoing summary administration often pay a flat fee for legal services.
Serving Families in Coral Springs, Parkland, and Throughout South Florida
The Law Office of Gary M. Landau assists individuals and families in Coral Springs, Parkland, Broward County, and surrounding South Florida communities with probate administration, wills, trusts, and related legal matters.
If a family member has died and you’re unsure whether probate is necessary, what type of probate proceeding applies, or whether Florida law requires you to hire an attorney, seeking answers before filing documents with the probate court can help determine the appropriate next steps. Every estate is unique, and the type of assets involved, creditor claims, homestead property, and the people who have an interest in the estate all affect how a probate is handled.
Schedule a Consultation with the Law Office of Gary M. Landau
If you’re asking, “Do I need a probate lawyer?” contact the Law Office of Gary M. Landau to review the circumstances of the estate and get clarity on the probate options available under Florida law.
Call our office at (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We happily work with our clients in person, by phone, or on Zoom.
At the LAW OFFICE OF GARY M. LANDAU, P.A., we assist clients throughout Coral Springs, Parkland, Broward County and all other counties in Florida. With more than 25 years of experience in our practice areas and countless satisfied clients, attorney Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate title and closing needs in Coral Springs, Parkland, Boca Raton, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you’re purchasing a home, have inherited a home, want to change your deed, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.
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/