The Non-Citizen Spouse and the Marital Deduction Trap

Most married couples assume that anything left to a surviving spouse passes free of federal estate tax under the unlimited marital deduction. That assumption breaks when the surviving spouse is not a U.S. citizen. Federal law denies the unlimited marital deduction to a non-citizen spouse, because Congress worried that a non-citizen could inherit a large estate and then leave the country before any tax is ever collected.

The standard solution is a Qualified Domestic Trust (QDOT). Property passes into the QDOT for the surviving spouse’s benefit, the marital deduction is preserved, and the estate tax is deferred until principal is distributed or the survivor dies. A QDOT must have at least one U.S. trustee, and larger trusts face additional security requirements. For a West Palm Beach couple where one spouse holds a green card or a foreign passport, building a QDOT option into the plan now avoids a costly surprise later. If the surviving spouse later naturalizes before the estate tax return is filed, the QDOT may no longer be necessary, which is one of many reasons estate and immigration timelines should be coordinated.

Non-Resident Aliens and U.S.-Situated Assets

Estate tax exposure also depends on residency for tax purposes, not just citizenship. A non-resident alien who owns U.S.-situated assets, including Florida real estate and shares in U.S. companies, can be subject to federal estate tax on those assets with only a very small exemption, far below what U.S. citizens and domiciliaries receive. Many foreign investors who buy a condo in Palm Beach County or fund a Florida LLC have no idea this exposure exists. Proper structuring, sometimes through entities or trusts, should be designed before the purchase, with input from both estate and tax advisors.

How Immigration Status Affects Beneficiaries and Guardians

Your beneficiaries’ immigration status matters too. Leaving assets outright to a beneficiary who is undocumented or who lives abroad can create practical and tax complications; a properly drafted trust under Chapter 736 of the Florida Statutes can hold and manage those assets responsibly. For parents, naming a guardian for minor children is critical when extended family lives overseas. If you want a relative abroad to raise your children, that wish should be documented clearly, while understanding that a Florida court still decides guardianship based on the child’s best interests. These are decisions immigrant families should not leave to chance.

Wills, Homestead, and Florida Formalities

Whatever your citizenship, a Florida will must meet the execution requirements of Florida Statutes §732.502: signed by the testator and two witnesses, all present together. Foreign wills and handwritten (holographic) wills often fail these formalities. Florida’s homestead protections add another layer: the state constitution restricts how a homestead can be devised when there is a surviving spouse or minor child, regardless of immigration status. A plan drafted abroad rarely accounts for these Florida-specific rules.

Powers of Attorney for Travel and Pending Cases

Immigration matters often require travel. A client may spend weeks at a U.S. consulate abroad for an immigrant visa, or be unreachable during processing. A durable power of attorney and a designated health care surrogate ensure that finances and medical decisions can be handled in your absence. If you have a pending green-card or naturalization case, your estate plan should be reviewed alongside it, because a change in status can change the entire tax and beneficiary picture.

Why You Need Both Estate and Immigration Counsel

Our firm focuses on Florida estate planning, not immigration. We regularly coordinate with a Florida immigration attorney so that the two plans align rather than collide. Families building their future here through E-2 and EB-5 investor visas especially benefit from this teamwork, since the business structures behind those visas carry real estate-tax and succession consequences. If you are new to West Palm Beach, or your family spans more than one country, get both an estate plan and immigration counsel in place. Contact our West Palm Beach office to start building a plan that protects your family on both sides of the border.

In Florida, probate administration is the court-supervised process of settling a deceased person’s estate under Chapters 731 through 735 of the Florida Statutes, while trust administration is a largely private process by which a successor trustee manages and distributes assets held in a living trust without ongoing judicial oversight. Both achieve the same end goal — paying valid debts and transferring assets to the right people — but they differ sharply in who controls the process, how long it takes, what it costs, and how much of the family’s business becomes public record. Choosing between them, or understanding which one you have been thrust into, is one of the most consequential decisions an estate’s representative faces.

I practice probate in West Palm Beach, and I see this comparison play out most often in a specific, painful context: a contested guardianship that ends with the ward’s death and then immediately rolls into a probate or trust dispute. The same family, the same suspicions, a new forum. So below I lay out the real mechanics of each path under Florida law, where they overlap, and where the friction lives.

What Florida probate administration actually involves

Probate is what happens when a person dies owning assets in their sole name that do not pass automatically by beneficiary designation, joint ownership, or trust. The estate must be opened in the circuit court of the county where the decedent lived — for our clients, that is the Probate Division of the Fifteenth Judicial Circuit in Palm Beach County. A personal representative is appointed, letters of administration are issued, and from that point forward the representative acts under the court’s authority and the supervision of Florida’s probate rules.

Florida recognizes two principal forms:

• Formal administration — the default for most estates, governed by Chapter 733. It requires appointment of a personal representative, formal notice to creditors, and court involvement at key steps. This is what people mean when they say “probate.”
• Summary administration — available under section 735.201 when the value of the probate estate (less the value of property exempt from creditors’ claims) is $75,000 or less, or when the decedent has been dead for more than two years. It is faster and cheaper, but no personal representative is appointed, which limits its usefulness for estates with ongoing affairs.

There is also disposition without administration under section 735.301, a narrow remedy for very small estates where the only assets are exempt property and funds barely sufficient to cover final expenses.

The probate timeline and creditor process

The single most important feature of formal probate — and the reason some families value it — is the creditor bar. The personal representative publishes a Notice to Creditors and serves known or reasonably ascertainable creditors directly. Under section 733.702, creditors generally must file claims within three months of publication, or within 30 days of being served, whichever is later. Section 733.710 imposes a hard outer limit: most claims are barred two years after death regardless of notice. That statutory cutoff gives beneficiaries genuine finality — once the window closes, late creditors are out.

The practical cost of that protection is time. A straightforward formal administration in Palm Beach County typically runs six months to a year. Anything contested — a will challenge, a fight over the personal representative, a disputed claim — can stretch it well beyond that.

What Florida trust administration involves

A revocable living trust changes the picture because, in theory, there is nothing for the court to administer. Assets titled in the name of the trust during life pass to the successor trustee at death by operation of the trust instrument, not by court order. The successor trustee’s duties are spelled out in the Florida Trust Code, Chapter 736.

Trust administration is private. There is no public docket listing the assets, no published inventory, no judge signing off on distributions in the ordinary case. The successor trustee gathers assets, pays debts and expenses, files final tax returns, and distributes what remains according to the trust’s terms. For families who value confidentiality — a business owner, a blended family, anyone who simply does not want neighbors reading the inventory — this privacy is the headline benefit.

Trustee duties and the notice requirements people overlook

Private does not mean unaccountable. The Florida Trust Code imposes real obligations on a successor trustee:

1. Notice of trust. Under section 736.05055, the trustee of a trust whose settlor has died must file a notice of trust with the court in the county of the settlor’s domicile. This is a short filing, but it is mandatory and it links the trust to any probate that gets opened.
2. Duty to inform and account. Section 736.0813 requires the trustee to keep qualified beneficiaries reasonably informed and, generally, to provide annual accountings and relevant trust information. Skipping this is a frequent source of beneficiary litigation.
3. Creditor handling. A trustee may invoke a limitations period for creditor claims under section 736.05053, but a revocable trust remains liable for the settlor’s debts and expenses of administration to the extent the probate estate is insufficient. Trust assets are not automatically shielded from legitimate creditors.
4. Duty of loyalty and impartiality. Sections 736.0802 and 736.0803 hold the trustee to a fiduciary standard — no self-dealing, even-handed treatment of beneficiaries.

When a trustee ignores these duties, beneficiaries can petition the court under Chapter 736 to compel an accounting, surcharge the trustee, or remove them. So a trust can land in court — it just does so by exception rather than by default.

Trust vs. probate administration in Florida, side by side

The cleanest way to compare the two is point by point.

• Court oversight: Probate is supervised by the circuit court from opening to discharge. Trust administration proceeds privately unless a dispute forces it into court.
• Privacy: The probate file — including the will and, in formal administration, the inventory — is generally a public record. Trust terms and assets stay private.
• Timeline: Formal probate commonly takes six months to a year (sometimes far longer if contested); an uncontested trust administration can often complete distributions in a matter of months.
• Cost: Probate carries court filing fees and statutory attorney’s-fee benchmarks tied to estate value under section 733.6171. Trust administration avoids most court costs but still incurs trustee and professional fees.
• Creditor protection: Probate offers the robust three-month claims bar and the two-year cutoff. The trust limitations period is narrower and the underlying liability for the settlor’s debts persists.
• Control and appointment: A personal representative needs letters of administration from the court before acting; a successor trustee usually has authority the moment the prior trustee dies or becomes incapacitated.

Why so many Florida estates need both

Here is the reality that surprises families: trust and probate administration are frequently not an either/or. Even with a well-funded revocable trust, assets sometimes slip through — a vehicle, a bank account opened late in life, an inheritance the settlor never retitled. Those stray assets still require probate. A pour-over will exists precisely to catch them and direct them into the trust, but the will itself must be probated to do its job. So a careful estate plan may produce a quiet trust administration running alongside a modest probate for the leftovers.

Where guardianship, trusts, and probate collide

Our firm sees the hardest cases at the seam between a contested guardianship and the administration that follows death. While a ward is alive, a court-appointed guardian or trustee controls the assets under intense scrutiny. When the ward dies, that guardianship terminates — the guardian must file a final report and account for everything — and the estate immediately transitions into probate or trust administration.

That transition is where old grievances resurface. A family member who fought the guardianship now scrutinizes the inventory. Allegations of undue influence over a late-life trust amendment, questions about gifts the guardian authorized, disputes over which assets were properly titled — these flow straight into the new forum. Whether the dispute lands in probate or in a trust proceeding changes the procedural tools available, the burden of proof on a will or amendment contest, and who has standing. Getting the characterization right early can decide the case.

Contesting the instrument that governs distribution

If the fight is over the validity of a will, Florida law lets interested persons challenge it on grounds of lack of capacity, undue influence, fraud, or improper execution. The mechanics of mounting such a challenge are technical, and although our courtroom is in Palm Beach, the analytical framework mirrors what estate litigators apply elsewhere — for a clear walkthrough of how a will challenge is structured, this overview of covers the core elements well. Trust amendments can be attacked on parallel theories under Chapter 736. The procedural container differs, but the human story — a vulnerable elder, a late change, a suspicious beneficiary — is the same.

Common mistakes families make

• Assuming a trust avoids all court involvement. A notice of trust still gets filed, creditors must still be addressed, and any beneficiary dispute lands in front of a judge.
• Leaving assets out of the trust. An unfunded or partially funded trust forces probate anyway. Funding is the step people skip.
• Treating trustee duties casually. Successor trustees who fail to account or who favor one branch of the family invite surcharge actions.
• Missing creditor deadlines. A personal representative who botches notice can lose the section 733.702 bar and leave the estate exposed.
• Ignoring the guardianship-to-probate handoff. The guardian’s final accounting and the opening of the estate must be coordinated, or assets fall through the cracks.

When to call a Florida probate attorney

If you are a personal representative, a successor trustee, or a beneficiary who suspects something is wrong, the path you take should be chosen deliberately, not by accident. An experienced attorney can tell you whether summary or formal administration applies, whether the trust can be wound up privately or is headed for litigation, and how to preserve the creditor protections and fiduciary claims that have hard deadlines. Our office handles both straightforward administrations and the contested cases that grow out of guardianship disputes. You can learn more about our , review the fundamentals on our Florida probate page, or explore how wills fit into a complete plan.

For families whose estates reach across state lines — a Palm Beach snowbird with property and accounts up north is common here — coordinated administration matters. A companion resource on in another jurisdiction helps illustrate how ancillary proceedings interlock. When you are ready to talk through your specific situation, contact our office to schedule a consultation.

Frequently Asked Questions

Is trust administration always faster than probate in Florida?

Usually, yes. An uncontested trust administration can complete distributions in a matter of months because it avoids the court’s opening, notice, and discharge steps. Formal probate under Chapter 733 typically runs six months to a year, largely because of the three-month creditor claims window under section 733.702. But a contested trust can take just as long as litigated probate once a beneficiary dispute lands in court.

Does having a living trust mean my estate avoids probate entirely?

Not always. A revocable trust only avoids probate for assets actually titled in the trust’s name. Any asset left in the decedent’s sole name, with no beneficiary designation, still requires probate. A pour-over will catches those stray assets and routes them into the trust, but the will itself must be probated, so many Florida estates involve both a private trust administration and a small probate.

Are trust assets protected from the deceased person's creditors in Florida?

Not automatically. Under the Florida Trust Code, a revocable trust remains liable for the settlor’s debts and the expenses of administration to the extent the probate estate is insufficient. A trustee can invoke a limitations period under section 736.05053, but it is narrower than the robust creditor bar available in formal probate, where section 733.710 cuts off most claims two years after death.

What happens to an estate when a contested guardianship ends in death?

The guardianship terminates and the guardian must file a final report and accounting. The assets then transition into probate or trust administration depending on how they are titled. Disputes from the guardianship—undue influence over a late amendment, questioned gifts, titling fights—often carry into the new proceeding, so coordinating the handoff and choosing the right forum early is critical.

Do I need a court-appointed personal representative for a small Florida estate?

Not in every case. If the probate estate, less property exempt from creditors’ claims, is $75,000 or less, or the decedent has been dead more than two years, the estate may qualify for summary administration under section 735.201, which appoints no personal representative. Very small estates may even use disposition without administration under section 735.301. An attorney can confirm which option fits.

I’ve spent years guiding heirs who scattered across the country long before a parent passed away in Palm Beach County. Some inherited a snowbird’s condo. Others discovered, only after a death, that a contested guardianship had already drained the estate’s goodwill. This guide walks through what out-of-state heirs actually need to know—not the generic version, but the version shaped by how Florida probate really works.

Why Florida Probate Applies When the Heirs Live Elsewhere

Probate is governed by the law of the state where the decedent was domiciled, and where they owned real property. If your loved one lived in West Palm Beach—or owned a condo in Boca, a fishing camp in Jupiter, or a brokerage account titled in Florida—the estate is administered in a Florida circuit court. Your own residence is irrelevant to that question. You could live in Manhattan or Munich; the Palm Beach County probate division still controls.

This trips people up. An adult child in New Jersey assumes their home-state attorney can “just handle it.” They can’t, at least not alone. Florida probate runs on Chapter 731 through 735 of the Florida Statutes and the Florida Probate Rules, and only a member of The Florida Bar can appear before the court. That’s the first practical consequence of being an out-of-state heir: you will need Florida counsel, and in formal administration the court generally requires that the personal representative be represented by a Florida attorney.

Domicile versus property location

Two things drive Florida jurisdiction. The first is domicile—the place the decedent treated as home. The second is the situs of assets. A New York resident who owned a Palm Beach vacation home will often need an ancillary probate in Florida (Florida Statutes § 734.102) running parallel to the main estate up north. If you’re an heir caught between two states’ proceedings, coordination matters enormously, because a misstep in one forum can stall the other.

Can an Out-of-State Heir Serve as Personal Representative in Florida?

This is the question I’m asked most, and the answer surprises people. Florida sharply limits who may serve as a nonresident personal representative. Under Florida Statutes § 733.304, a person who is not a Florida resident may serve only if they are:

• A legally adopted child or adoptive parent of the decedent;
• Related by lineal consanguinity—a parent, grandparent, child, or grandchild;
• A spouse, or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
• The spouse of a person otherwise qualified above.

In plain terms: if you’re the decedent’s son living in Texas, you qualify. If you’re a close family friend or a more distant relative living out of state, you generally do not, even if the will names you. A nonresident who clears the relationship test still must, under Florida Statutes § 733.304 and Probate Rule 5.110, designate a Florida resident agent to accept service of process. Many out-of-state heirs designate their Florida probate attorney for exactly this purpose.

If no out-of-state heir qualifies, the court looks to a qualified Florida resident, or the heirs may agree on a professional fiduciary. This is one reason families benefit from sorting out succession before a death—see our overview of Florida wills and estate planning for how a well-drafted will can name a qualified representative and avoid a fight.

The bond question

Florida courts may require the personal representative to post a bond, and judges scrutinize this more closely when the representative lives far away. A bond protects the beneficiaries against mismanagement. A will can waive bond, but the court retains discretion to require one anyway—particularly where assets are substantial or the estate is contested.

Running a Florida Probate Without Living in Florida

The good news for distant heirs is that most of modern probate is paperwork, and paperwork travels well. Here’s the realistic sequence, and where your physical absence does and doesn’t matter:

1. Open the estate. Your Florida attorney files the petition for administration in the county of domicile. You sign documents remotely—notarized and, where allowed, by Florida’s remote online notarization. You rarely appear in person.
2. Get appointed. The court issues Letters of Administration naming the personal representative. This is the document that lets you act for the estate—open the estate bank account, deal with the bank, sign the listing agreement on the house.
3. Inventory and notice. Within the statutory window, the representative files an inventory and serves the Notice to Creditors. Florida gives creditors a limited period to file claims under Florida Statutes § 733.702 and § 733.710—generally a three-month window from first publication, with a hard two-year backstop.
4. Resolve claims and taxes. Legitimate debts get paid; improper claims get objected to. Florida has no state estate tax, but federal returns may apply to larger estates.
5. Distribute and close. Once claims clear and the court approves accounting, assets pass to the heirs and the estate closes.

Throughout, you can attend hearings by Zoom in most Palm Beach County matters, sign by mail or e-notary, and communicate by email. I have closed estates where the personal representative never returned to Florida once. The friction is real but manageable—the bottleneck is almost never geography. It’s information, and the occasional contest.

When a Guardianship Came Before the Probate

Out-of-state heirs are uniquely vulnerable to a problem they never see coming: a contested guardianship that quietly reshaped the estate while they were a thousand miles away. A parent declines. One sibling, living nearby, petitions to become guardian of the person or property. Decisions get made—accounts moved, the homestead refinanced, a caregiver added to a deed—and the distant heirs learn of it only at the funeral.

When that guardianship ends at death, the estate transitions into probate, and the guardianship accounting becomes part of the story. Florida law requires a guardian of the property to file a final report after the ward dies (Florida Statutes § 744.527), and that report is reviewable. If the guardianship was contested, or if funds moved in ways that benefited the nearby sibling, the probate is where those questions get answered. Distant heirs have standing to demand the accounting, object to it, and pursue surcharge claims where a guardian breached duty.

This guardianship-to-probate handoff is precisely where out-of-state heirs lose ground if they wait. The records exist; the deadlines are unforgiving. If you suspect a Florida guardianship was mishandled before your relative died, treat the opening of probate as your window to act, not a formality. Our discussion of contested Florida probate and guardianship transitions goes deeper on this overlap.

Contesting a Will or Accounting From Out of State

Being far away does not weaken your right to challenge. Florida lets interested persons contest a will on grounds including lack of capacity, undue influence, fraud, or improper execution under Florida Statutes § 732.502 and § 733.107. Undue influence is the recurring theme in families where one heir had proximity and the others had distance—Florida’s seminal In re Estate of Carpenter framework still guides how courts weigh a confidential relationship plus active procurement of a will.

The catch is timing. Once the personal representative serves you with formal Notice of Administration, you typically have just three months to file objections and contest the will under Florida Statutes § 733.212. Miss it, and your challenge is barred. For an heir in another time zone juggling work and a long-distance loss, three months evaporates. Engage Florida counsel the moment you receive notice—do not wait for the estate to “play out.”

Will contests and estate litigation are a discipline of their own. Whether your fight is in Florida or another state, experienced litigators who handle understand how proximity, capacity, and undue influence interact—and how to preserve evidence before it disappears. For families whose estates span jurisdictions, that cross-state perspective is invaluable.

Practical Tips for Heirs Managing a Florida Estate Remotely

• Secure the property fast. A vacant Florida home is exposed to storm damage, squatters, and lapsing insurance. Confirm the homeowners policy stays current and consider a local property manager.
• Don’t move assets before Letters issue. Acting without authority creates personal liability. Wait for the court’s appointment.
• Designate a resident agent thoughtfully. Your Florida attorney is the usual choice and keeps you compliant under § 733.304.
• Gather records early. Bank statements, deeds, the guardianship file if one existed, and any prior wills. Distance makes document-hunting slow; start day one.
• Coordinate dual-state probate. If a main estate is open in your home state and ancillary probate is needed in Florida, make sure both attorneys talk.

For the Florida-specific filings and court appearances, you’ll want counsel admitted here. Morgan Legal’s handles administration for in-state and out-of-state families alike, and their national network means a New York heir with a Palm Beach condo isn’t bounced between unconnected firms. If your matter touches New York, the same group handles the full on the other side.

The Bottom Line for Distant Heirs

You do not have to relocate, take leave from work, or fly back and forth to protect your inheritance in a Florida estate. You do have to act inside Florida’s deadlines, satisfy its nonresident representative rules, and stay alert to anything that happened—especially under a guardianship—while you weren’t watching. The heirs who do best are the ones who treat the opening of probate as a starting gun, not a closing bell. If you have questions about a Florida estate from out of state, our team is a phone call away—reach out to discuss your matter before the clock runs out.

Frequently Asked Questions

Do I have to travel to Florida to be part of the probate?

Almost never. Out-of-state heirs can sign documents by mail or remote online notarization, attend most Palm Beach County hearings by Zoom, and communicate with counsel by email. Florida counsel handles the in-court appearances. The process runs in a Florida court under Florida law, but your physical presence is rarely required to participate, inherit, or even serve as personal representative.

Can an out-of-state person serve as the Florida personal representative?

Only if they meet Florida Statutes § 733.304’s relationship test—generally a spouse, child, parent, grandparent, grandchild, sibling, or certain other close relatives of the decedent, or the spouse of such a person. A nonresident who qualifies must also designate a Florida resident agent for service of process, which is commonly the estate’s Florida attorney.

How long do I have to contest a Florida will from another state?

Typically three months from when you are served with the formal Notice of Administration, under Florida Statutes § 733.212. The deadline does not pause because you live far away. Distant heirs should engage Florida counsel immediately upon receiving notice, since the window to object to the will or the qualification of the personal representative is short and strictly enforced.

What if a contested guardianship occurred before my relative died?

When a guardianship ends at death, the estate moves into probate and the guardian must file a final accounting under Florida Statutes § 744.527. Out-of-state heirs have standing to demand that accounting, object to questionable transactions, and pursue surcharge claims if the guardian breached a fiduciary duty. The opening of probate is the key window to raise these issues.

Will I need probate in two states?

Possibly. If the decedent was domiciled in another state but owned Florida real property, an ancillary probate under Florida Statutes § 734.102 may run alongside the main estate. Coordinating both proceedings—and having attorneys in each state communicate—is essential to avoid delays and conflicting orders.

That distinction matters, and it trips up almost everyone the first time. I have sat across from clients in Palm Beach County who assumed a judge would walk them through every step, and others who assumed the court would simply rubber-stamp whatever the family agreed on. Neither is right. Below is how the Florida probate court actually functions, where its authority begins and ends, and the moments when it stops being a passive recorder of paperwork and starts issuing binding orders.

What Is the Probate Court in Florida?

There is no standalone “probate court” building in Florida the way some states have. Probate is a division of the circuit court, and a circuit judge (or, increasingly, a general magistrate handling certain matters) presides over the file. Jurisdiction is established under Chapter 731, which sets the general provisions, definitions, and venue rules that govern every probate proceeding in the state.

Venue is usually straightforward: the proceeding belongs in the county where the decedent was domiciled at death. For a resident of West Palm Beach, that means the Fifteenth Judicial Circuit in Palm Beach County. If the person lived out of state but owned Florida real estate, venue lies in the county where that property sits. Get venue wrong and you can lose weeks refiling.

The court’s authority is both narrow and deep. It cannot reach into assets that never become “probate assets,” such as accounts with valid beneficiary designations or property held in a living trust. But over the assets it does control, its power is real: it can compel an accounting, surcharge a personal representative for losses, remove a fiduciary, and enter orders that bind heirs who never showed up to object.

The Core Functions of the Florida Probate Court

Strip away the procedural noise and the court does a handful of essential jobs. Each one is a checkpoint, and each can become a battleground when the family is not aligned.

1. Admitting the Will and Confirming Its Validity

When someone dies with a will, the original document must be deposited with the clerk and then formally admitted to probate. The court reviews whether the will was executed with the formalities Florida requires: signed by the testator and witnessed by two people in the manner the statute demands. A will that is self-proved under section 732.503 sails through without live witness testimony. One that is not self-proved may require an oath from a witness before the judge will admit it. If no valid will exists, the estate passes under Florida’s intestacy statutes in Chapter 732, and the court applies that statutory hierarchy rather than the family’s preferences.

2. Appointing the Personal Representative

Florida calls the executor a “personal representative.” The court issues Letters of Administration, the document that gives that person legal authority to act for the estate, sign on its behalf, and access accounts. The court also screens for eligibility. Florida law disqualifies certain people from serving, including most non-relatives who live outside the state and anyone convicted of a felony. When two people both claim the right to serve, the court decides between them, weighing the will’s nomination and the statutory order of preference.

3. Supervising Administration Without Micromanaging It

Here is the part that surprises families. Under section 733.603, Florida Statutes, the personal representative is directed to “proceed expeditiously with the settlement and distribution of a decedent’s estate” and to do so without adjudication, order, or direction of the court, except where the Probate Code or a specific order requires it. In other words, the default setting is autonomy. The representative pays valid debts, marshals assets, files the inventory, and distributes property largely on their own authority.

The same statute, though, lets the representative “invoke the jurisdiction of the court to resolve questions concerning the estate or its administration.” That clause is the hinge. A prudent fiduciary who faces a contested decision asks the court to bless it in advance, converting a risky judgment call into a protected one.

4. Adjudicating Creditor Claims

Probate is also a creditor process. The representative must serve notice on known creditors and publish notice to unknown ones; creditors then have a limited window to file claims. When the estate objects to a claim, the dispute lands in front of the probate judge, who decides whether the debt is owed. Many of the , from late creditor claims to disputed medical liens, get resolved at exactly this stage.

5. Determining Homestead and Exempt Property

Florida’s homestead protection is unusually strong and partly constitutional. Whether a house qualifies as protected homestead, and therefore passes outside the reach of most creditors, is a question the probate court decides on a Petition to Determine Homestead Status of Real Property. That determination can be folded into a summary administration order or issued separately, but it must follow notice to interested persons, including creditors.

Formal Administration vs. Summary Administration

The court’s level of involvement depends heavily on which track the estate travels. Florida offers two main paths, and choosing the right one early saves months.

• Formal administration (Chapter 733) is the full process: a personal representative is appointed, Letters issue, creditors are noticed, an inventory and accounting are filed, and the estate is closed by court order. This is the route for most estates that exceed the small-estate threshold or that need someone with ongoing legal authority to manage assets, sell property, or litigate.
• Summary administration (Chapter 735) is the streamlined option. It is generally available when the value of the probate estate (excluding exempt property such as homestead) does not exceed $75,000, or when the decedent has been dead for more than two years. No personal representative is appointed; instead, the court enters an order distributing the assets directly to the people entitled to them and naming who receives what.

Summary administration looks attractive because it is faster and cheaper. But it offers no court-appointed fiduciary to chase down assets, no formal mechanism to bar later creditor claims the way formal administration’s notice procedure does, and far less protection when relatives are at odds. When a family is contesting anything, summary administration is usually the wrong tool.

When the Probate Court Stops Being Passive: Contested Matters

Most files move quietly. The ones that do not tend to share a feature: somebody objects. The probate court’s most active and consequential role is resolving those objections, and this is where the proceeding shifts from administrative to adversarial.

Common flashpoints include:

1. Will contests. An interested party challenges the will on grounds of lack of capacity, undue influence, fraud, or improper execution. The court holds an evidentiary hearing and can strike the will entirely.
2. Removal of the personal representative. If a fiduciary mismanages assets, self-deals, or simply fails to act, beneficiaries can petition for removal, and the court can replace them and surcharge them for losses.
3. Accounting disputes. Beneficiaries who suspect mishandling can demand a full accounting and object to specific entries, forcing the representative to justify every dollar.
4. Guardianship-to-probate transitions. When a person was under a contested guardianship before death, the questions that drove that fight, who had control, whether assets were depleted, whether transfers were proper, rarely vanish. They migrate into the probate file, often with the same warring parties.

That last category deserves emphasis for families in Palm Beach County, where a significant share of probate litigation grows directly out of guardianship disputes. A guardian’s final accounting and the validity of transactions made during incapacity frequently become probate issues the moment the ward dies. The probate judge then inherits a record that may already be thick with allegations. If you are navigating that handoff, our guidance on Florida probate administration and on wills and estate documents walks through how those earlier guardianship decisions echo into the estate.

What the Probate Court Does Not Do

It is just as important to understand the court’s limits. The probate judge does not give legal advice to the family, does not manage the estate’s investments, and does not police the personal representative day to day unless someone files something asking the court to act. The system is largely complaint-driven. If no one objects, the court generally accepts the representative’s filings at face value. That structure rewards organized fiduciaries and punishes families who assume oversight is automatic. It is not.

The court also cannot manufacture jurisdiction over non-probate assets. Life insurance with a named beneficiary, a “payable on death” bank account, jointly titled property with survivorship rights, and trust assets all pass outside probate entirely. Disputes over those assets may end up in civil court, but not on the probate docket.

How This Plays Out Beyond Florida

Estates rarely respect state lines, especially among Florida’s many transplants. A West Palm Beach decedent who kept a co-op in Manhattan or a brokerage account managed from New York may need a second, “ancillary” proceeding in that state. The mechanics differ: New York runs its estates through the Surrogate’s Court rather than a circuit court probate division. Families juggling both systems often coordinate with counsel in each jurisdiction, and firms that handle can manage the out-of-state piece while Florida counsel handles the home estate. For the in-state component, working with a Florida team experienced in keeps the two tracks aligned instead of working at cross-purposes.

Practical Takeaways

If you take one thing from all of this, take this: the Florida probate court is a backstop, not a babysitter. It admits the will, empowers the personal representative, settles fights, and signs off on the close. Between those checkpoints, the heavy lifting belongs to the fiduciary and their counsel. When a family is unified, the court’s footprint is light. When it is not, that same court becomes the arena where capacity, undue influence, accountings, and lingering guardianship grievances all get decided.

Knowing which track your estate belongs on, formal or summary, and anticipating where objections are likely to arise, is the difference between a six-month administration and a multi-year contest. If you are facing a probate matter in Palm Beach County, particularly one carrying over from a contested guardianship, speak with a Florida probate attorney before the first filing rather than after the first dispute.

Frequently Asked Questions

What court handles probate in Florida?

Probate is handled by the circuit court in the county where the decedent was domiciled at death, or where their Florida real estate is located. For West Palm Beach residents, that is the probate division of the Fifteenth Judicial Circuit in Palm Beach County. There is no separate standalone probate court in Florida; it is a division of the circuit court operating under the Florida Probate Code, Chapters 731 through 735.

Does the probate court manage the estate, or does the personal representative?

The personal representative does the actual work. Under section 733.603, Florida Statutes, the representative is directed to settle and distribute the estate without needing court orders for routine steps. The court generally steps in only when someone invokes its jurisdiction to resolve a question or files an objection, such as a will contest or an accounting dispute.

What is the difference between formal and summary administration in Florida?

Formal administration (Chapter 733) is the full process with a court-appointed personal representative, creditor notice, and a closing order. Summary administration (Chapter 735) is a streamlined process, generally available when the probate estate is worth $75,000 or less or the decedent has been deceased more than two years; it has no appointed representative and the court distributes assets by direct order.

Can the probate court remove a personal representative?

Yes. Beneficiaries or other interested persons can petition for removal if the personal representative mismanages assets, self-deals, fails to act, or otherwise breaches their duties. The court can replace the representative and surcharge them personally for losses the estate suffered as a result.

How does a contested guardianship affect a later probate case in Florida?

Disputes from a guardianship rarely end when the ward dies. Questions about the guardian’s final accounting, the validity of transfers made during incapacity, and whether assets were depleted often carry directly into the probate file, frequently with the same opposing parties. The probate judge then inherits that history, which is why guardianship-to-probate transitions tend to be among the most contested matters on the docket.

What Makes Homestead Special

Florida’s homestead protection comes from the state Constitution, Article X, Section 4. It does three jobs at once: it shields the home from most creditors during life, it caps property taxes, and it restricts how the home can be devised at death. That last point surprises many Palm Beach homeowners. If you are survived by a spouse or minor child, you generally cannot leave the home to whomever you please; the Constitution dictates who inherits it.

How Homestead Passes in Probate

When a homestead passes to heirs, it usually does so outside the reach of the deceased’s creditors, which is a powerful benefit. But the way it passes depends on the family situation:

• Surviving spouse and descendants. The spouse may receive a life estate with the remainder to the descendants, or the spouse can elect a one-half interest as tenant in common. This election has a deadline, so it cannot be ignored.
• Spouse, no minor children. The owner has more freedom to leave the home to the spouse outright.
• No spouse or minor children. The owner can generally devise the homestead freely.

Even when the home is protected, a Palm Beach personal representative often files a Petition to Determine Homestead Status so the court formally confirms the property is protected and identifies the rightful heirs.

Option: Pass the Home With a Lady Bird Deed

A Lady Bird deed, also called an enhanced life estate deed, lets a Palm Beach owner keep full control of the home during life, including the right to sell or mortgage it, while naming who receives it automatically at death. Because the transfer happens by operation of the deed, the home avoids probate entirely and keeps its homestead protections. For a single-owner residence, this is a popular and economical tool.

Option: Hold the Home in a Revocable Trust

A revocable living trust (Chapter 736) can also hold the homestead and pass it without probate. Florida law has been careful to preserve homestead creditor protection for property held in a properly drafted revocable trust. A trust is especially useful for owners with multiple properties or blended families, where the simple beneficiary structure of a Lady Bird deed may not be enough.

Comparing the Approaches

Letting the home pass through probate gives the court’s confirmation of homestead status but takes time. A Lady Bird deed is simple and cheap but blunt. A trust is the most flexible but requires drafting and funding. The right choice depends on your family and your other Palm Beach assets.

Talk to a Florida Attorney

Homestead rules are constitutional and unforgiving; an invalid attempt to leave the home can be voided entirely. A licensed Florida attorney serving Palm Beach can confirm how your homestead will pass and which tool fits. This article is general information, not legal advice.

I have watched more Palm Beach County families fight over a house than over any bank account, brokerage statement, or business interest. The reason is rarely greed. It is that homestead law in Florida is genuinely counterintuitive, and the people drafting wills (sometimes the lawyers who drafted them) treat the family home like any other asset. It is not. Below is how the home actually moves through a Florida probate, where the traps are, and what a surviving spouse, a child, or a guardian stepping into a probate should be watching for.

What Makes a Property “Homestead” for Probate Purposes

Florida uses the word “homestead” in three different legal contexts, and conflating them is the first mistake people make. There is the tax homestead (the exemption and the Save Our Homes assessment cap), the creditor-protection homestead, and the descent and devise homestead that controls who inherits. They overlap but are not identical, and a property can qualify for one and not another.

For probate, the controlling authority is Article X, Section 4 of the Florida Constitution, supplemented by Florida Statutes sections 732.401 and 732.4015. To qualify, the property must have been the decedent’s permanent residence and must fall within the constitutional acreage limits — up to one-half acre inside a municipality, or up to 160 contiguous acres outside one. The owner must have been a Florida resident, and the residence must have been the place they actually intended to remain.

Two features of homestead status drive everything that follows:

• Creditor protection survives death. If the property was protected homestead during life, it generally passes to qualifying heirs free of the decedent’s general creditors — credit cards, judgments, medical bills, and the like. The protection inures to the heirs.
• Homestead usually passes outside the probate estate. Title typically vests in the heirs at the instant of death by operation of law, not by the personal representative’s deed. The personal representative often has no power to sell it or use it to pay claims.

This last point catches families and even creditors off guard. A judgment creditor who assumes the house is fair game during probate frequently learns that the homestead is untouchable in the heirs’ hands.

The Devise Restrictions: Why the Will May Not Control

Here is the rule that produces the most litigation in our office: you cannot freely leave your Florida homestead to whomever you want if you are survived by a spouse or a minor child.

Article X, Section 4(c) of the Constitution prohibits the devise of homestead when the owner is survived by a spouse or minor child, with one narrow exception — the homestead may be devised to the surviving spouse if there is no minor child. Any attempt to devise the homestead in violation of this rule is simply void. The will provision fails, and the property instead descends under section 732.401 as though there had been no valid devise.

Consider a common Palm Beach scenario. A widower with two adult children remarries late in life and signs a will leaving the house to his children “to keep it in the family.” He is survived by his new spouse. Because he has a surviving spouse, he could not devise the homestead to the children. The devise is void. The home does not go to the children outright — it descends under the statute, which gives the surviving spouse rights the children never anticipated. The “keep it in the family” plan collapses precisely because it ignored the constitutional restriction.

One important caveat: if there is no surviving spouse and no minor child, the devise restrictions disappear, and the owner may leave the homestead to anyone. An adult child alone does not trigger the restriction. The constitutional protection runs to spouses and minor children, not adult descendants.

How Homestead Descends Under Section 732.401

When the devise restrictions apply (or when the owner dies intestate), Florida Statutes section 732.401 controls who takes the home. The outcome turns on the family configuration at death.

Surviving Spouse and Descendants

If the decedent is survived by a spouse and one or more descendants, the default rule under section 732.401(1) gives the surviving spouse a life estate in the homestead, with a vested remainder to the descendants in being at the time of death, per stirpes. The spouse can live in the home for life; the descendants own what is left when the spouse dies.

That default sounds tidy but tends to break down in practice. A life tenant is responsible for taxes, insurance, and ordinary maintenance, while the remaindermen hold an interest they cannot use or sell. Disputes over a leaking roof, an unpaid tax bill, or a spouse who wants to move into assisted living are routine — and they are exactly the kind of conflict that lands in front of a Palm Beach probate judge.

The Spousal Election to Take One-Half

Recognizing how unworkable a life estate can be, the Legislature added section 732.401(2): the surviving spouse may elect to take an undivided one-half interest as a tenant in common instead of the life estate, with the other one-half passing to the descendants per stirpes. This converts a use-only interest into outright ownership of half the equity — often a far better outcome if the spouse intends to sell.

The election is time-sensitive and procedural, and missing the mechanics forfeits the right:

1. The election must be made within six months after the decedent’s death and during the surviving spouse’s lifetime.
2. It is made by filing a notice of election containing the legal description of the homestead for recording in the official records of the county where the property sits.
3. If a guardian, attorney-in-fact, or similar fiduciary makes the election on behalf of an incapacitated spouse, the court must approve it as being in the spouse’s best interests over the spouse’s probable lifetime.

That third item is where our firm’s editorial focus — contested guardianship-to-probate transitions — collides directly with homestead law. When a surviving spouse is under guardianship, the guardian must petition the court to make the election, and the judge weighs the spouse’s likely lifespan, the value of the home, and the spouse’s financial needs. Adult children who are remaindermen often oppose the election, because every dollar the spouse takes as a one-half owner is a dollar out of their remainder. These fights are sharp, fact-intensive, and worth getting right the first time.

No Surviving Spouse

If there is no surviving spouse, the homestead descends to the decedent’s descendants (or, absent descendants, under the intestacy rules), still cloaked in its creditor protection. And again, with no spouse and no minor child, the owner is free to devise the homestead by will.

Getting Homestead Status Determined in Probate

Because the homestead passes outside the probate estate, its status must usually be confirmed by the court. The personal representative or an interested party files a petition to determine homestead status of real property. The judge enters an order declaring that the property was the decedent’s protected homestead, identifying the heirs in whom title vested, and confirming that the home is not subject to the claims of the decedent’s creditors.

That order is what title companies and future buyers rely on. Skipping it — or assuming a recorded deed alone is enough — leaves a cloud on title that surfaces, predictably, at the worst possible moment: a contract closing. If you are not certain whether a property qualifies, this is the threshold question to resolve before anything else. (If you are weighing whether a homestead determination or a full administration is the right path, our overview of Florida probate administration walks through the options.)

Creditors, the One Exception, and Common Traps

The creditor protection is strong but not absolute. The Constitution itself carves out three categories of obligations that can reach the homestead: (1) taxes and assessments on the property, (2) obligations contracted for the purchase, improvement, or repair of the property — your mortgage, in other words — and (3) obligations contracted for labor or materials used to improve the property, such as a contractor’s lien. A mortgage does not vanish at death; the heir who takes the home takes it subject to the loan.

A few recurring traps worth flagging:

• Joint tenancy and survivorship deeds. If the home is titled with rights of survivorship, it may pass to the co-owner outside both the will and the homestead descent rules — sometimes defeating the very plan the decedent intended.
• Putting the homestead in a revocable trust. This can work, but it does not let you escape the spousal and minor-child devise restrictions. A trust that tries to do what a will cannot is just as void.
• Assuming “exempt property” covers the house. The separate exempt-property allowance under section 732.402 (household furnishings, two vehicles, certain other items) is unrelated to homestead and does not change who inherits the home.
• Out-of-state planning. A will or trust drafted in another state, by a lawyer unfamiliar with Article X, frequently mishandles Florida homestead. We see this constantly in a county full of transplants.

Homestead Disputes in a Guardianship-to-Probate Posture

The most difficult homestead cases I handle begin in guardianship and end in probate. An aging spouse is placed under guardianship; the other spouse dies; and the guardian must now decide whether to make the one-half election, defend the homestead from creditors, or sell to fund the ward’s care. Each of those moves requires court approval, and each can be contested by remainder beneficiaries with opposing financial interests.

The key is to think several moves ahead. The election decision, the homestead determination, and any proposed sale should be coordinated as a single strategy rather than litigated piecemeal. A guardian who files a one-half election without first analyzing the ward’s life expectancy and care costs can do real damage that is difficult to undo. If a guardianship matter is heading toward this transition, our probate and guardianship team can map the sequence before deadlines start running.

How Florida Compares — and Why Jurisdiction Matters

Florida’s homestead protections are among the most generous in the country, and they behave very differently from probate in other states. New York, for example, has no comparable constitutional homestead descent regime; there, the family residence is generally administered as part of the estate and distributed under the will or the intestacy statute. If you are coordinating an estate that touches both states, it helps to see how the other jurisdiction handles the home — Morgan Legal’s New York team explains the mechanics in its guide to the , and the differences between . For Florida-side homestead questions specifically, Morgan Legal’s handles these determinations regularly.

The practical takeaway: do not assume a homestead-style protection exists, or doesn’t, based on what you’ve heard about another state. The home is the asset most likely to be governed by local rules you didn’t expect.

Practical Steps If You Are Facing This Now

If you are a surviving spouse, an adult child, or a guardian dealing with a Florida home in probate, a short checklist keeps you out of the worst trouble:

1. Confirm whether the property actually qualifies as constitutional homestead before relying on any will provision.
2. Identify the family configuration at the date of death — spouse, minor children, adult descendants — because that controls everything.
3. If you are the surviving spouse, calendar the six-month election deadline immediately and decide, with counsel, between the life estate and the one-half interest.
4. File a petition to determine homestead status so title is clean.
5. Account for the mortgage and any construction liens — those follow the house.

Homestead is where Florida probate is least intuitive and most consequential. Getting the analysis right early is far cheaper than unwinding a void devise or a missed election after the fact. If you would like a review of how a specific home will pass, or you are preparing an estate plan that includes Florida real estate, our estate planning and wills resources are a good starting point, and we are glad to walk Palm Beach families through the specifics.

Frequently Asked Questions

Does Florida homestead property go through probate?

Usually only in a limited way. Florida homestead generally passes outside the probate estate and vests in qualifying heirs at the moment of death by operation of law, free of the decedent’s general creditors. However, the court typically must still enter an order determining homestead status to confirm who took title and to clear the property for sale or transfer.

Can I leave my Florida home to my children in my will if I have a spouse?

No, not if you are survived by a spouse. Article X, Section 4 of the Florida Constitution prohibits devising homestead away from a surviving spouse or minor child. The only exception is leaving it to the surviving spouse when there is no minor child. A devise that violates this rule is void, and the home instead descends under Florida Statutes section 732.401 — typically a life estate to the spouse with a remainder to the descendants.

What is the surviving spouse's election on Florida homestead?

Under section 732.401(2), instead of taking the default life estate, the surviving spouse may elect to receive an undivided one-half interest in the homestead as a tenant in common, with the other half passing to the decedent’s descendants. The election must be made within six months of death by recording a notice of election, and if a guardian or agent makes it for an incapacitated spouse, the court must approve it as being in that spouse’s best interests.

Are creditors able to reach Florida homestead after death?

Generally no. Homestead protection inures to qualifying heirs, shielding the home from the decedent’s general creditors such as credit cards and judgments. The constitutional exceptions are property taxes and assessments, mortgages and other purchase or improvement obligations, and construction liens for labor or materials. An heir takes the home subject to any existing mortgage.

What happens to homestead when there is no spouse and no minor children?

The constitutional devise restrictions no longer apply, so the owner may leave the homestead to anyone by will. If there is no will, it descends to the decedent’s descendants under the intestacy rules. In either case, the property generally retains its creditor protection in the hands of qualifying heirs.

I practice probate here in Palm Beach County, and the question I hear first, almost every time, is some version of: “What is this going to cost me?” It is a fair question with an annoyingly lawyerly answer—it depends. But it depends on a fairly predictable set of factors, and once you see them laid out, the fog clears. This guide walks through what you actually pay in a Florida probate, who sets those amounts, and the situations (contested guardianships that ripen into probate, in particular) where the standard math stops applying.

What Goes Into the Cost of Probate in Florida

Probate cost is not one number. It is a stack of separate charges, and lumping them together is how people end up surprised. Broadly, a Florida estate pays four categories of expense:

• Court and filing costs — the clerk’s filing fee, recording fees, certified copies of Letters of Administration, and publication of the Notice to Creditors in a qualifying newspaper.
• Attorney’s fees — compensation for the lawyer who represents the personal representative, governed by §733.6171.
• Personal representative’s compensation — the fee the executor (Florida calls them the “personal representative”) may take for serving, governed by §733.617.
• Other administration costs — appraisals, accounting and tax preparation, bond premiums, real estate carrying costs, and fees for any specialists like a CPA or property manager.

Filing fees in Florida are modest by comparison—generally in the low hundreds of dollars to open a formal administration, plus a few dollars per certified copy. The numbers that make people wince are the attorney and personal representative fees, because Florida statutes tie both to the size of the estate rather than the hours worked.

How Florida Calculates “Reasonable” Attorney Fees

This is the heart of it. Section 733.6171 of the Florida Statutes sets a presumed-reasonable fee schedule for the attorney who represents the personal representative in a formal estate administration. The fee is layered—a percentage on each band of the “compensable value” of the estate, which is the inventory value plus income earned during administration. As of the current statute, the presumptive schedule runs roughly like this:

1. $1,500 for estates valued at $40,000 or less.
2. An additional $750 for the value between $40,000 and $70,000.
3. An additional $750 for the value between $70,000 and $100,000.
4. 3% of the value between $100,000 and $1 million.
5. 2.5% of the value between $1 million and $3 million.
6. 2% of the value between $3 million and $5 million.
7. 1.5% of the value between $5 million and $10 million.
8. 1% of the value above $10 million.

So a $600,000 estate produces a presumptive attorney fee of $3,000 (the first three brackets) plus 3% of $500,000, which is $15,000—roughly $18,000 total. That is not a quote; it is a starting presumption the statute treats as reasonable absent agreement otherwise.

Two things matter enormously here. First, the schedule is a default, not a mandate. Florida law expressly allows the attorney and the personal representative to agree to a different arrangement—an hourly rate, a flat fee, or a reduced percentage—and a written fee agreement controls. Second, “extraordinary services” carry separate, additional compensation. Contested matters are the classic example, and that is where the editorial focus of our practice—guardianship disputes that flow into probate—becomes financially relevant.

Extraordinary Fees: Where Contested Estates Get Expensive

The statutory percentage covers ordinary administration: opening the estate, marshaling assets, paying creditors, distributing, closing. It does not cover the abnormal. Will contests, litigation over a personal representative’s conduct, the sale of real property, tax controversy, and proceedings involving an adversary all qualify as extraordinary services billed on top of the base fee.

I see this most often when a contested guardianship transitions into probate. A ward dies during or shortly after a fight over who controls their care and money, and every grievance from the guardianship—allegations of undue influence, suspicious last-minute deed transfers, a will signed during a period of questioned capacity—lands squarely in the probate. Those estates do not follow the tidy percentage schedule. They generate extraordinary fees because they generate litigation, and the court reviews that compensation under the lodestar-style factors Florida courts apply, weighing time, novelty, skill required, and results obtained. If you are stepping out of a guardianship battle and into estate administration, budget for that reality early; the patterns mirror the generally, only intensified by the unresolved family conflict.

Personal Representative Compensation

The personal representative is also entitled to a fee, and Florida Statutes §733.617 sets its own presumptive percentage schedule, separate from the attorney’s. It is generally calculated as a percentage of the estate’s compensable value plus income—commonly around 3% on the first $1 million, scaling down on larger estates. A family member serving as personal representative frequently waives this fee, especially when they are also a beneficiary and would rather take their inheritance than taxable compensation. But the right exists, and a non-family professional fiduciary will almost always claim it.

When extraordinary services fall on the personal representative—managing a business, prosecuting litigation, handling a contested tax position—that person may seek additional compensation too, subject to court review for reasonableness.

Formal vs. Summary Administration: The Cost Fork

Not every Florida estate runs the full formal track. The probate code offers a streamlined path called summary administration (Florida Statutes §735.201), available when the value of the probate estate subject to administration is $75,000 or less, or when the decedent has been dead for more than two years. Summary administration skips the appointment of a personal representative and the formal creditor period, which collapses both the timeline and the cost dramatically.

• Formal administration — required for larger estates and any estate needing an empowered personal representative to act over time; full statutory fee schedule applies; typically several months to over a year.
• Summary administration — faster and far cheaper, often resolved in weeks, with attorney fees commonly quoted as a flat amount rather than a percentage.
• Disposition without administration — a narrow option for very small estates where assets were spent on final expenses; essentially a reimbursement procedure, not a true administration.

One caution from experience: families sometimes chase summary administration to save money and then discover the estate had a creditor, a contested heir, or an asset that required someone with authority to sign. When that happens, you convert to formal administration and pay for both starts. If there is any whiff of a dispute—again, the guardianship-to-probate cases are textbook—formal administration is usually the cheaper choice in the end, even though it looks more expensive on day one.

What Actually Drives Your Final Bill

Strip away the statutes and the real cost drivers are these:

1. Gross estate value — because the default schedules are percentage-based, a larger estate mechanically costs more, even if the work is identical.
2. Conflict — a contested will or a fight over the personal representative is the single biggest multiplier, converting a flat administration into open-ended litigation.
3. Asset complexity — out-of-state real property, closely held businesses, and illiquid holdings all add appraisal and legal work.
4. Creditor and tax issues — Medicaid recovery, federal estate tax (only the largest estates), and contested claims each add cost.
5. Fee structure you negotiate — the one driver you actually control. A written hourly or flat-fee agreement can sit well below the statutory percentage on a high-value but simple estate.

That last point is underused. If your loved one held a $2 million estate consisting of one brokerage account and one house with a clean, uncontested will, paying a statutory percentage on $2 million is paying litigation prices for clerical work. A candid conversation about a flat or capped fee is entirely appropriate, and a good probate attorney will have it with you without being pushed.

When Probate Costs Signal You Need a Litigator, Not Just an Administrator

If the estate arrives carrying an unresolved guardianship fight, a will signed under questionable circumstances, or a beneficiary already threatening to contest, your cost analysis changes entirely. You are no longer pricing administration; you are pricing a potential trial. The mechanics of challenging a testamentary document—grounds, burdens, and timing—track closely with how a , and the Florida analysis under our undue-influence and capacity case law runs in parallel. The fee posture shifts toward extraordinary services and, sometimes, fee-shifting between the estate and the challenger.

This is precisely the territory where front-loading a strategy conversation saves money. Our firm and our colleagues at handle these contested transitions regularly, and the estates that fare best are the ones where someone mapped the fee exposure before the first hearing, not after the third.

Practical Steps to Keep Costs Down

• Get the fee arrangement in writing and ask specifically whether the statutory percentage or an alternative applies.
• Determine eligibility for summary administration before defaulting to formal—but be honest about hidden disputes.
• Gather a clean asset inventory early; lawyer time spent hunting for accounts is the most avoidable cost there is.
• Address creditor and tax questions up front, before they become contested claims.
• If a contest is brewing, treat it as litigation from day one and price it that way.

A well-drafted estate plan is the cheapest probate insurance available; if you are reviewing your own planning, our overview of Florida wills and our broader guide to the Florida probate process are good next reads. And if you are already staring down an administration, especially one shadowed by a guardianship dispute, reach out for a consultation before you sign anything.

The Bottom Line on Florida Probate Costs

Florida ties the largest probate expenses—attorney and personal representative compensation—to the size of the estate through §733.6171 and §733.617, but those schedules are presumptions you can negotiate, and they explicitly carve out extraordinary fees for contested matters. The estates that cost the most are not the largest; they are the contested ones. Knowing which category yours falls into, ideally before you file, is the single most valuable thing you can do for the people the estate is meant to protect.

Frequently Asked Questions

How much does probate cost in Florida?

Total probate cost varies with the estate’s size and complexity. The largest expense is usually the attorney fee, which Florida Statutes §733.6171 presumes reasonable on a sliding percentage—about $3,000 plus 3% of value between $100,000 and $1 million. A $600,000 estate carries a presumptive attorney fee near $18,000, plus filing costs, personal representative compensation, and any extraordinary fees for contested matters. Summary administration for estates of $75,000 or less costs far less.

Are Florida probate attorney fees set by statute?

Florida Statutes §733.6171 provides a presumed-reasonable percentage fee schedule, but it is a default, not a mandate. The attorney and personal representative can agree in writing to an hourly rate, flat fee, or reduced percentage instead. On large but simple estates, an alternative arrangement is often substantially cheaper than the statutory percentage.

What are 'extraordinary fees' in a Florida probate?

Extraordinary fees are additional charges, on top of the ordinary statutory fee, for non-routine work such as will contests, litigation over a personal representative’s conduct, sale of real estate, and tax controversies. Contested estates—including guardianship disputes that carry into probate—commonly generate extraordinary fees, which the court reviews for reasonableness based on time, skill, and results.

Can I avoid full probate costs with summary administration?

Yes, if you qualify. Florida Statutes §735.201 allows summary administration when the probate estate is $75,000 or less, or when the decedent has been dead more than two years. It skips appointing a personal representative and the formal creditor period, cutting both time and cost. But if a dispute or unexpected creditor surfaces, you may have to convert to formal administration and pay for both.

Who pays the attorney fees in a Florida probate?

Attorney fees and administration costs are generally paid from the estate’s assets, not out of the personal representative’s pocket, before distributions to beneficiaries. In contested litigation, Florida courts can sometimes shift fees between the estate and a party depending on the conduct and outcome of the dispute.

I have spent years watching Palm Beach County families walk into the probate division of the Fifteenth Judicial Circuit carrying grief and, too often, suspicion. The cases that go sideways almost never go sideways because of bad luck. They go sideways because a document was vague, a signature ceremony was sloppy, or a parent quietly changed an estate plan during the same months a guardianship was being argued over their capacity. Those are preventable problems. This article is about preventing them.

What a probate dispute actually is — and why clarity prevents it

A probate dispute is any contested proceeding that arises while a decedent’s estate is being administered. The most common are will contests, challenges to the appointment of a personal representative, claims that a beneficiary exerted undue influence, and disputes over the meaning of ambiguous language. Each of these has one thing in common: a gap between what the deceased person actually wanted and what the documents can prove they wanted.

Clear estate planning closes that gap. When a will leaves no room for interpretation, witnesses can testify to a clean execution, and the planning record shows a person acting freely and with capacity, there is simply less for a disgruntled heir to attack. Florida courts will not rewrite an estate plan because someone is unhappy with it. They will, however, set aside a plan that was the product of fraud, duress, or undue influence — and they will spend months untangling a document nobody can read the same way twice.

The Florida statutes that govern a valid plan

Florida’s probate and trust framework is detailed, and the details are where disputes are won or lost. A few provisions matter to nearly every estate:

• Will execution — Fla. Stat. § 732.502. A Florida will must be signed by the testator at the end, in the presence of two attesting witnesses, who must sign in the presence of the testator and of each other. Get this ceremony wrong and the entire will is vulnerable, no matter how clear its terms.
• Self-proving wills — Fla. Stat. § 732.503. A properly executed self-proving affidavit lets the will be admitted to probate without tracking down witnesses years later. It is one of the cheapest forms of dispute insurance available.
• Spousal rights — Fla. Stat. § 732.201 et seq. Florida’s elective share gives a surviving spouse a statutory percentage of the elective estate regardless of what the will says. Plans that ignore this invite litigation.
• Pretermitted heirs — Fla. Stat. § 732.301 and § 732.302. Children or spouses acquired after a will is signed may have claims unless the document addresses them. Silence is not the same as intent.
• Homestead — Article X, § 4 of the Florida Constitution. Homestead property passes under constitutional restrictions that override many will provisions. A devise that violates them simply fails, and the resulting confusion is a frequent source of conflict.

None of these are obscure. They are foundational. Yet a startling number of contested estates I see trace back to a do-it-yourself form that ignored one of them.

From contested guardianship to contested probate: the transition no one plans for

This firm’s particular focus is the moment a guardianship matter becomes a probate matter — and that transition is where some of the most bitter disputes are born. The pattern is familiar. An aging parent in declining health becomes the subject of a guardianship petition under Chapter 744 of the Florida Statutes. Family members split into camps. While capacity is being litigated, someone produces a new will or an amended trust, signed during the very window when the parent’s competence was in question.

When that parent dies, the guardianship file does not disappear. It becomes Exhibit A in the will contest. Every physician’s report, every examining committee finding, every allegation about who was controlling access to mom or dad — all of it carries straight into the probate division. A clean estate plan, executed and documented before any guardianship cloud formed, is the single best defense against this kind of cross-contamination.

Why a guardian’s authority does not extend to estate planning by default

One point routinely surprises families: a guardian of the property does not automatically have the power to write or rewrite a ward’s will. Under Fla. Stat. § 744.441, a guardian may take certain actions affecting the ward’s estate only with specific court approval. When someone claims authority they did not have, the resulting documents are exactly the kind of thing the probate court later voids. Clear, court-supervised process during incapacity prevents that downstream fight.

Undue influence: the most common ground for a will contest

If a will is going to be challenged in Palm Beach County, undue influence is the likeliest theory. Florida law recognizes that when a substantial beneficiary occupied a confidential relationship with the decedent and was active in procuring the will, a presumption of undue influence can arise — the framework descends from the Florida Supreme Court’s decision in In re Estate of Carpenter. The factors courts weigh include who was present at the signing, who selected the drafting attorney, who arranged transportation, and who kept the documents afterward.

Clear estate planning neutralizes these factors before they ever become evidence. When the testator meets the attorney privately, with no interested beneficiary in the room; when the attorney independently confirms capacity and intent; when the execution is clean and self-proving — the presumption struggles to take hold. I have watched the same facts produce opposite outcomes purely because one family did the signing carefully and the other did not.

Practical steps that keep estates out of court

Most of what prevents litigation is unglamorous and entirely within your control. Here is the sequence I walk Florida clients through:

1. Execute documents with formal supervision. Use two disinterested witnesses and a notary, and make the will self-proving under § 732.503. Do the same for your durable power of attorney and health care surrogate designation.
2. Fund a revocable living trust. Assets titled in a properly funded trust pass outside probate entirely, which removes them from the courtroom and from public scrutiny. An unfunded trust, by contrast, does nothing — a mistake I see constantly.
3. Reconcile beneficiary designations. Life insurance, retirement accounts, and payable-on-death accounts pass by designation, not by will. When those forms contradict the will, you have manufactured a dispute.
4. Address the elective share and homestead deliberately. If you intend to limit a spouse’s share, say so and pair it with a valid waiver. If homestead is involved, structure the devise to survive the constitutional restrictions.
5. Document capacity contemporaneously. If there is any history of cognitive concern, a physician’s note dated near the signing can end a future capacity challenge before it begins.
6. Name a personal representative who can actually serve. Florida restricts who may serve under Fla. Stat. § 733.304. A nonresident generally must be related to the decedent. Naming someone ineligible guarantees a fight over appointment.
7. Revisit the plan after every major life event. Marriage, divorce, a new child, a death, a move to Florida — each can scramble an old plan and create pretermitted-heir or stale-designation problems.

The role of clear language and a no-contest reality check

Drafting matters more than people think. A bequest of “my jewelry to my daughters” invites argument over what counts as jewelry and which daughters. Specific, identified gifts do not. Residuary clauses should account for the possibility that a beneficiary predeceases you. Trusts should define distribution standards — “health, education, maintenance, and support” — rather than leaving a trustee to guess.

Florida clients sometimes ask about no-contest, or in terrorem, clauses. Be aware that under Fla. Stat. § 732.517, such clauses are unenforceable in Florida wills, and § 736.1108 makes them unenforceable in trusts as well. You cannot threaten a beneficiary out of litigating here. That makes clarity and clean execution your real protection, not a clause the court will ignore.

When you should bring in a probate attorney

Some estates are simple enough that a careful person can avoid most pitfalls. Many are not. Blended families, business interests, out-of-state property, a history of family conflict, or any prior guardianship proceeding all push an estate firmly into “get counsel” territory. The cost of planning correctly is a small fraction of the cost of contesting a flawed plan after the fact, and it spares your family the worst version of grief — the kind that plays out across a courtroom aisle.

If you are weighing your options, it helps to understand how disputes unfold once they reach court. Morgan Legal’s New York team has written a clear overview of , and a companion piece on that, while New York–focused, illustrates the same dynamics Florida families face. For Florida-specific representation, the firm’s handles administration and litigation across the state.

On our own site, you can review how we structure wills and core estate documents, read more about the mechanics of Florida probate administration, or contact our West Palm Beach office to discuss your situation. The earlier you plan, the less there is to dispute.

Key takeaways

• Probate disputes grow out of ambiguity, sloppy execution, and plans made under a capacity cloud — all preventable.
• Florida’s execution, elective-share, homestead, and personal-representative statutes must be respected or they become grounds for litigation.
• The transition from a Chapter 744 guardianship to probate is a high-risk moment; documents created during that window draw the most scrutiny.
• No-contest clauses are unenforceable in Florida, so clean drafting and careful signing — not threats — are your protection.

Frequently Asked Questions

Can a will be contested in Florida if the signing was done properly?

It can still be contested, but a proper signing makes a successful challenge far less likely. Florida requires two witnesses and signature at the end of the document under Fla. Stat. § 732.502, and a self-proving affidavit under § 732.503 lets the will be admitted without locating witnesses years later. A clean, supervised execution removes the procedural defects that most contests rely on, leaving challengers to prove harder claims like undue influence or lack of capacity.

Does a revocable living trust avoid probate disputes in Florida?

A properly funded revocable living trust keeps the assets it holds out of the probate court entirely, which removes them from public proceedings and from many disputes. The critical word is funded — a trust you sign but never retitle assets into does nothing. Trusts can still be challenged for capacity or undue influence, but a clear, funded trust with defined distribution standards gives heirs far less to argue about than a contested will.

Why are estates that started as guardianships more likely to be disputed?

Because the guardianship file follows the case into probate. When a will or trust is signed while a Chapter 744 guardianship is litigating the person’s capacity, every medical report and family allegation from that proceeding becomes potential evidence in a later will contest. The cleanest defense is an estate plan executed and documented before any guardianship cloud formed, so there is no overlap between the capacity dispute and the planning.

Are no-contest clauses enforceable in Florida wills?

No. Under Fla. Stat. § 732.517 for wills and § 736.1108 for trusts, no-contest (in terrorem) clauses are unenforceable in Florida. A beneficiary cannot be disinherited simply for challenging the document. That is precisely why careful drafting, respect for spousal and homestead rights, and a clean execution ceremony matter so much — they are your actual protection against a dispute, not a clause the court will disregard.

Who can serve as a personal representative in Florida?

Florida limits eligibility under Fla. Stat. § 733.304. A Florida resident may generally serve. A nonresident may serve only if they are related to the decedent by blood, marriage, or adoption, or fall within specific statutory categories. Naming someone who is ineligible — for example, an out-of-state friend — almost guarantees a fight over the appointment, so it is worth confirming eligibility when you draft the will.

I have spent years litigating these disputes, and they almost never look like the dramatic forgery you see on television. More often, the fraud is quiet. An elderly widow signs a new will three weeks before she dies, leaving everything to the home health aide who controlled her phone, her medications, and her checkbook. The signature is genuine. The notary was real. And yet the document does not reflect what she wanted. That gap, between a technically valid signature and a genuinely free choice, is where these cases live.

What Counts as Undue Influence Under Florida Law

Florida courts do not treat ordinary persuasion as undue influence. Adult children are allowed to ask a parent to remember them. A spouse is allowed to express preferences. The line is crossed when the influence becomes so coercive that it destroys the free agency of the person making the will. The classic Florida formulation, drawn from In re Estate of Carpenter (Fla. 1971), asks whether the influence amounted to “over-persuasion, duress, force, coercion, or artful or fraudulent contrivances” sufficient to destroy free will.

What makes Florida distinctive is that the law gives contestants a powerful procedural tool: a presumption of undue influence. Once a challenger establishes three foundational facts, the burden shifts to the person defending the will to prove the gift was legitimate.

The three elements that trigger the presumption are:

• A confidential relationship between the deceased and the alleged influencer. This can be a caregiver, an agent under a power of attorney, a guardian, a financial advisor, an adult child handling the parent’s affairs, or anyone in a position of trust and dependency.
• A substantial benefit received by that person under the will, trust, or transfer being challenged.
• Active procurement of the document by the beneficiary, meaning they were involved in bringing the will about.

On the third element, Florida courts look to the Carpenter factors when deciding whether someone “actively procured” a will. No single factor is required, and the list is not exhaustive, but courts weigh things like:

1. The beneficiary’s presence when the will was executed.
2. Their presence when the maker expressed a desire to make a will.
3. Whether they recommended or selected the attorney who drafted it.
4. Whether they knew the contents of the will before it was signed.
5. Whether they gave instructions to the drafting attorney.
6. Whether they secured the witnesses to the will.
7. Whether they kept the executed will in their safekeeping after it was signed.

When these elements line up, the presumption arises. Under Florida Statutes section 733.107, the burden then shifts to the proponent of the will to come forward with a reasonable explanation for the active role in the transaction. This burden-shifting rule, codified after the Florida Supreme Court’s decision in Hack v. Janes, is one of the most important weapons a contestant has, because undue influence is rarely committed in front of witnesses. It happens behind closed doors, and the law accounts for that secrecy.

From Guardianship to Probate: Where Influence Often Begins

In Palm Beach County, many of the strongest undue influence cases trace back to a guardianship or a power of attorney that went unsupervised. A person is appointed to manage an aging parent’s finances, isolates that parent from the rest of the family, and then a new estate plan appears that funnels assets toward the person holding the keys. When that arrangement later surfaces in probate, the prior fiduciary relationship is not a defense. It is often the very confidential relationship that triggers the presumption. The transition from a lifetime guardianship dispute into a post-death probate fight is one of the most contested areas of Florida estate litigation, and the evidence from the guardianship phase frequently becomes the backbone of the will contest.

Probate Fraud: A Different Standard, Higher Proof

Fraud is conceptually distinct from undue influence, though the two are often pleaded together. Florida recognizes two flavors in the probate context:

• Fraud in the execution happens when a person is deceived about the nature of the document they are signing. They think they are signing a power of attorney or a deed, and it is actually a will. The signature is real, but the consent is not.
• Fraud in the inducement happens when a person knowingly signs a will, but they were lied to about facts material to its terms. A son tells his mother his sister has been stealing from her, the lie convinces her to disinherit the daughter, and the new will reflects that false belief.

To set aside a will for fraud in Florida, a contestant generally must prove that a false representation was made, that the person making the will relied on it, and that the misrepresentation caused the disposition. Florida courts require this be shown by the greater weight of the evidence in a will contest, though fraud allegations are scrutinized carefully because they accuse someone of deliberate deceit.

Forgery, the most extreme form, is its own ground. If the signature itself is not genuine, the will is void. These cases turn on forensic document examiners, the testimony of the attesting witnesses, and the formalities required by Florida Statutes section 732.502, which governs how a will must be signed and witnessed.

Lack of Testamentary Capacity Often Travels Alongside

Undue influence and fraud frequently appear next to a third claim: lack of testamentary capacity. Florida requires that the person making a will understand, in a general way, the nature and extent of their property, the natural objects of their bounty (their family), and the practical effect of the will. A diagnosis of dementia does not automatically void a will, because capacity is measured at the moment of signing, and a person can have a lucid interval. But cognitive decline and undue influence reinforce each other in court: the weaker the mind, the easier it is to overpower, and the lower the threshold for a finding that the will was procured rather than freely chosen.

The Evidence That Wins These Cases

These claims are won and lost on documentation. By the time the dispute reaches probate, the central witness, the person who made the will, has died. Everything depends on the paper trail and the people around them. Over the years, the records that consistently carry weight include:

• Medical and cognitive records from the months surrounding the signing, including hospitalizations, neurological evaluations, and medication lists that may have impaired judgment.
• The drafting attorney’s file and notes, which often reveal who called to set up the appointment, who sat in the room, and who relayed the instructions.
• Bank and financial records showing a pattern of transfers, account-name changes, or beneficiary designations that shifted in the influencer’s favor.
• Evidence of isolation, such as changed locks, intercepted mail, screened phone calls, or a sudden inability of other family members to reach the parent.
• Prior estate plans that were consistent for decades before an abrupt, last-minute change.

A sudden, dramatic departure from a long-stable estate plan, executed when the person was sick and dependent on the very beneficiary who gained the most, is the fact pattern that judges recognize. Each piece may be explainable on its own. Together, they tell a story.

How and When to Bring a Claim in Florida Probate

Timing is critical. In a formal Florida probate administration, an interested party who receives the statutory Notice of Administration generally has only three months from the date that notice is served to file objections to the validity of the will, the venue, or the jurisdiction of the court, under Florida Statutes section 733.212. Miss that window and the right to contest can be lost entirely. This deadline is far shorter than people expect, and it is the single most common reason valid contests never get heard. If you suspect a problem, do not wait.

A will contest is filed as a petition in the probate division of the circuit court where the estate is being administered. Palm Beach County estates are handled in the Fifteenth Judicial Circuit. Discovery, depositions of the drafting attorney and witnesses, and often dueling expert opinions on capacity follow. Florida also has a notable rule worth understanding: in terrorem clauses, the “no-contest” provisions common in other states, are unenforceable in Florida under section 732.517 for wills (and section 736.1108 for trusts). A beneficiary can challenge a suspicious will without forfeiting an inheritance they would otherwise receive, which removes a major deterrent that exists elsewhere.

Trusts and Non-Probate Transfers Are Fair Game Too

Undue influence and fraud are not limited to wills. The same principles reach revocable trusts, deeds, joint-account designations, and beneficiary forms on life insurance and retirement accounts. Because so much wealth now passes outside of probate through these instruments, much of the actual fight happens over trust amendments and last-minute account changes rather than the will itself. Florida’s burden-shifting presumption applies to these transfers as well.

If you are weighing a challenge, it helps to understand how probate works more broadly first. Our overview of the Florida probate process and the basics of wills and estate documents can give you the context to recognize whether what happened to your family fits one of these patterns. For comparison, Morgan Legal’s New York team explains how the equivalent disputes unfold up north in their guides to and to , both of which mirror many of the Florida standards discussed here. For Florida-specific representation, you can also review the firm’s .

Why These Cases Are Worth Fighting

People sometimes ask whether contesting a will is worth the cost and the family conflict. There is no universal answer. But when a vulnerable person’s last wishes were hijacked, the harm is not only financial. It is the erasure of decades of intent in the final weeks of a life. Florida’s law, with its burden-shifting presumption, its rejection of no-contest penalties, and its careful treatment of capacity, is structured to give families a real chance to prove what happened. The cases are fact-intensive and they reward early, organized investigation. If something about a loved one’s final estate plan does not sit right, the clock under section 733.212 is already running, and the time to speak with a probate litigator is now. Contact our office to discuss whether the facts support a claim.

Frequently Asked Questions

What is the difference between undue influence and probate fraud in Florida?

Undue influence happens when someone in a position of trust coerces a vulnerable person into making a will or transfer that reflects the influencer’s wishes rather than the maker’s own free will. Probate fraud involves deception, either tricking the person about what they are signing (fraud in the execution) or lying about material facts to induce a particular disposition (fraud in the inducement). Undue influence focuses on coercion and lost free agency; fraud focuses on a false statement that was relied upon. They are often pleaded together in the same will contest.

How does Florida's presumption of undue influence work?

Under Florida law and section 733.107, a presumption of undue influence arises when a challenger proves three things: the beneficiary had a confidential relationship with the deceased, received a substantial benefit, and was actively involved in procuring the will or transfer. Once those elements are shown, the burden shifts to the person defending the document to provide a reasonable explanation for their active role. Courts use the Carpenter factors, such as who selected the attorney and who was present at signing, to evaluate active procurement.

How long do I have to contest a will in Florida?

If you are served with a formal Notice of Administration, you generally have only three months from the date of service to file objections challenging the validity of the will, under Florida Statutes section 733.212. This deadline is short and strictly enforced, so missing it can permanently bar your claim. Because investigation takes time, you should consult a probate litigation attorney as soon as you suspect a problem rather than waiting for the deadline to approach.

Will I lose my inheritance if I challenge a suspicious will in Florida?

No. Florida does not enforce no-contest (in terrorem) clauses. Under section 732.517 for wills and section 736.1108 for trusts, a provision that tries to disinherit a beneficiary for challenging the document is unenforceable. This means you can bring a good-faith undue influence or fraud claim without forfeiting an inheritance you would otherwise be entitled to receive, which is a meaningful difference from many other states.

Can undue influence or fraud be used to challenge a trust or beneficiary designation, not just a will?

Yes. The same legal principles apply to revocable trusts, trust amendments, deeds, joint bank accounts, and beneficiary designations on life insurance and retirement accounts. Because so many assets now pass outside of probate, much of the actual litigation involves these non-probate transfers. Florida’s burden-shifting presumption of undue influence extends to these instruments when a confidential relationship, a substantial benefit, and active procurement are present.

I have watched too many surviving spouses in Palm Beach County learn this the hard way, often because they were grieving, often because no one told them the deadlines were running. This article walks through exactly when a surviving spouse must act, what each deadline protects, and where the traps are. It is general information, not legal advice for your situation — but it should help you understand why timing matters so much in a Florida estate.

What “must act” means for a surviving spouse in Florida probate

Florida law gives a surviving spouse a bundle of distinct rights, and each one has its own trigger and its own deadline. Some, like intestate inheritance, fall to the spouse automatically. Others — the elective share, the homestead election, exempt property, and the family allowance — require a written election or petition filed with the probate court. Miss the window, and the right generally disappears.

That distinction trips people up. A spouse may assume that because they are entitled to “their share,” it will simply arrive. It will not. The personal representative (Florida’s term for the executor) administers the estate according to the will and the statutes, but it is not their job to file the spouse’s elections for them. In a contested matter — and the transition from a contested guardianship into a probate is one of the most contested settings we see — an opposing personal representative has every incentive to let the spouse’s deadlines quietly lapse.

The notice of administration starts most clocks

After the will is admitted and a personal representative is appointed, the personal representative serves a notice of administration under Florida Statute § 733.212 on interested persons, including the surviving spouse. Read that notice carefully and note the date you were served. Several of the most valuable spousal deadlines run from that service date, not from the date of death and not from the funeral.

If you have any objection to the validity of the will, the qualifications of the personal representative, or the venue or jurisdiction of the court, those objections are also tied to the notice of administration and must generally be raised within three months of service. Once that window closes, your ability to contest the will itself narrows dramatically.

The elective share: 30% of the elective estate (§ 732.201)

Florida does not let a spouse be disinherited. Under § 732.201, a surviving spouse may elect to take an elective share equal to 30% of the decedent’s “elective estate.” The elective estate is broader than the probate estate — it reaches certain non-probate assets such as revocable trust property, jointly held accounts, and some transfers made before death, all computed under §§ 732.2035 and following. This is the right that most often defeats an attempt to cut a spouse out through a trust or beneficiary designations.

When the elective share election must be filed

The deadline lives in § 732.2135. A surviving spouse must file the election on or before the earlier of:

• Six months after the date the notice of administration is served on the spouse; or
• Two years after the decedent’s date of death.

The court can extend the six-month window if the spouse files a petition for extension before the period runs — for example, when the value of the elective estate is genuinely unknown because assets are still being traced. But you cannot count on an extension. The safe practice is to make the election within the original window and litigate valuation afterward.

One more point that surprises clients: the spouse can take the elective share in addition to homestead, exempt property, and the family allowance. Those protections sit on top of the 30%, not inside it.

Homestead: life estate or an undivided one-half interest (§ 732.401)

The Florida homestead is its own world. If the decedent owned a homestead and is survived by a spouse and one or more descendants, § 732.401 gives the spouse a life estate in the homestead, with a vested remainder to the decedent’s descendants. But the spouse may instead elect to take an undivided one-half interest as a tenant in common, with the other half passing to the descendants.

This choice has real consequences. A life estate keeps you in the home for life but burdens you with taxes, insurance, and upkeep while the remaindermen wait. A one-half tenancy-in-common interest gives you a marketable, sellable share but forces co-ownership with the children — who may be stepchildren with very different goals. There is no universally right answer; it depends on your age, the property’s value, your relationship with the descendants, and whether you intend to stay.

The homestead deadline is short and unforgiving

The election for the undivided one-half interest must be filed within six months of the decedent’s death, and it is made by recording a notice of election in the public records of the county where the homestead sits. Critically, this is a statute of repose: the six-month homestead-election deadline is not extendable for any reason, before or after it expires. If a guardian or agent under a power of attorney is making the election for an incapacitated spouse, a petition for court approval must be filed within those same six months and during the spouse’s lifetime. This single deadline is the one I worry about most in cases that come out of a contested guardianship, because the spouse is often the very person whose capacity was in dispute.

Exempt property: furniture and vehicles (§ 732.402)

Section 732.402 sets aside certain property for the surviving spouse (or, if none, the decedent’s children) free from claims of creditors. Exempt property includes:

• Household furniture, furnishings, and appliances in the decedent’s usual residence, up to a net value of $20,000 as of the date of death;
• Two motor vehicles, each under 15,000 pounds gross weight, that the decedent regularly used; and
• Certain qualified tuition program funds and statutorily designated teacher/administrator death benefits.

To preserve these rights, the spouse must file a petition to determine exempt property within the earlier of four months after service of the notice of administration, or 40 days after the termination of any proceeding involving the will’s construction or admission. Fail to petition in time and the exempt-property right is deemed waived. It is a modest amount of money, but the four-month window is one of the shortest on this list, and it is easy to overlook while you are focused on the bigger fight over the elective share.

Family allowance during administration (§ 732.403)

Probate takes time, and bills do not pause. Section 732.403 lets the surviving spouse and the decedent’s lineal heirs the decedent was supporting receive a reasonable family allowance, capped at a total of $18,000, paid out of the estate for maintenance during administration. The court may order it as a lump sum or in installments, and it is in addition to — not deducted from — the spouse’s other shares. There is no rigid statutory deadline, but it should be requested early in the administration, because its entire purpose is to support the family while the estate is open.

How contested guardianship-to-probate transitions raise the stakes

Many of the surviving-spouse cases we handle in West Palm Beach do not start in probate at all. They start in a guardianship — frequently a contested one, where family members fought over who would control an ailing spouse’s finances and care. When that spouse later passes, the guardianship file closes and the estate opens, and all of the deadlines above suddenly start running against a spouse who may still be elderly, ill, or under a guardianship of their own.

In that posture, three things matter enormously. First, whether the surviving spouse retained capacity to make their own elections, or whether a guardian or agent must act on their behalf within the same compressed deadlines. Second, whether assets were moved during the guardianship in ways that shrink the elective estate — those transfers can sometimes be pulled back in. Third, whether the will or trust now being offered for probate is itself the product of undue influence, which connects the probate fight to the same dynamics that drove the guardianship dispute. The mechanics of challenging a suspect instrument echo what our colleagues describe in — the doctrines differ by state, but the patterns of undue influence and capacity litigation rhyme across jurisdictions.

A practical timeline for the surviving spouse

If you are a surviving spouse and an estate is opening, here is the order I tell clients to think in:

1. Find the date of death and the date you were served the notice of administration. Write both on the front of the file. Almost every deadline keys off one of them.
2. Calendar the six-month homestead deadline first, because it cannot be extended.
3. Calendar the four-month exempt-property petition and the elective-share window (earlier of six months from service or two years from death).
4. Request the family allowance promptly if you need support during administration.
5. Preserve any will contest or personal-representative objection within three months of the notice of administration.
6. Get a full picture of non-probate assets — trusts, joint accounts, beneficiary designations — because they feed the elective estate.

For a broader overview of how a Florida estate is administered from start to finish, see our discussion of Florida probate administration, and if questions about the validity of the will itself are in play, our page on Florida wills and will contests covers the grounds. You can also reach our team directly through our contact page if a deadline is approaching.

Where to get help

These deadlines are real, and Florida courts enforce them. A surviving spouse who acts early keeps every option open; a spouse who waits often forfeits rights worth far more than the filing would have cost. If you are facing a Florida estate — especially one emerging from a contested guardianship — talk to a probate attorney before any of these windows close. Our firm handles these matters throughout Palm Beach County, and you can learn more about our . For the broader framework of how estates are settled and administered, this overview of is a useful companion read.

Frequently Asked Questions

How long does a surviving spouse have to claim the elective share in Florida?

Under Florida Statute 732.2135, the surviving spouse must file the elective-share election by the earlier of six months after being served the notice of administration or two years after the decedent’s death. The six-month portion can sometimes be extended if the spouse petitions the court before it expires, but it is safest to file within the original window.

Can a Florida surviving spouse be completely disinherited?

No. Florida’s elective share (Statute 732.201) lets a surviving spouse claim 30% of the decedent’s elective estate, which reaches beyond the probate estate to include certain trust assets, joint accounts, and pre-death transfers. Homestead protections under Statute 732.401 further prevent a spouse from being deprived of the marital home.

What is the deadline to make the Florida homestead election?

The election to take an undivided one-half interest in the homestead instead of a life estate must be filed within six months of the decedent’s death and recorded in the county where the property sits. This six-month deadline is a statute of repose and cannot be extended for any reason, so it should be calendared first.

What property is exempt for a surviving spouse in Florida probate?

Under Statute 732.402, exempt property includes household furniture and appliances up to $20,000 in net value, two qualifying motor vehicles, and certain education-savings and teacher death benefits. The spouse must petition to determine exempt property within four months after service of the notice of administration or the right is waived.

Is the family allowance separate from the elective share?

Yes. The family allowance under Statute 732.403, capped at $18,000, supports the surviving spouse and dependents during administration and is paid in addition to the elective share, homestead rights, and exempt property. It does not reduce the spouse’s other shares and should be requested early in the probate.