Understanding What Probate Actually Covers
One of the most common questions families ask after a loved one passes is: “Which assets have to go through probate?”
In Florida, not everything a person owns becomes part of their probate estate. Probate only applies to assets that were solely owned by the decedent and did not have a designated beneficiary or survivorship feature.
Knowing which assets are subject to probate can help you plan ahead — or, if you’re already involved in an estate, understand what the court will (and won’t) need to administer.
What Does Go Through Probate in Florida
The following types of property typically require probate to transfer ownership:
1. Solely Titled Real Estate
If the decedent owned Florida real property in their name alone, it generally must go through probate.
- Example: A home titled “John Smith” (with no co-owner or trust) will pass through probate.
- Exception: Florida homestead property receives special constitutional protection and may pass directly to heirs under Fla. Const. art. X, § 4 and Fla. Stat. § 732.401, often outside of the normal probate creditor process.
2. Bank Accounts Without a Pay-on-Death (POD) or Joint Owner
Accounts titled only in the decedent’s name with no beneficiary designation will be frozen until a personal representative is appointed.
3. Vehicles, Boats, and Personal Property
Cars, boats, jewelry, furniture, and personal belongings in the decedent’s name become probate assets unless they are specifically titled in joint ownership or held in trust.
4. Business Interests
Sole proprietorships, LLC membership interests, or shares of privately held companies owned in the decedent’s individual name must be transferred through probate or by corporate resolution authorized by the estate.
5. Certain Investment or Brokerage Accounts
If an account doesn’t have a designated “transfer-on-death” (TOD) or “beneficiary” option, it will require probate before funds can be distributed.
What Does Not Go Through Probate in Florida
Many assets pass outside of probate automatically. These are called non-probate assets, and they include:
1. Jointly Owned Property with Right of Survivorship
Property titled as joint tenants with right of survivorship automatically passes to the surviving owner by operation of law — no court involvement required.
2. Beneficiary-Designated Accounts
- Life insurance policies
- Retirement plans (401(k), IRA)
- Pay-on-death (POD) and transfer-on-death (TOD) accounts
Each of these transfers directly to the named beneficiary.
3. Assets Held in a Revocable Trust
Property properly titled into a revocable living trust during the owner’s lifetime avoids probate entirely. The successor trustee distributes assets according to the trust terms.
4. Homestead Property (in most cases)
Under Fla. Stat. § 732.401, if the decedent’s home qualifies as Florida homestead and passes to an heir, it is generally exempt from probate creditors and may transfer through a Petition to Determine Homestead Status rather than traditional probate.
Why It Matters: Avoiding Delays and Costs
Probate is often time-consuming because the court must validate the will, notify creditors, and supervise distribution. Identifying non-probate assets early allows families to access funds sooner and minimizes administrative costs.
At Clause Law Group, we help clients:
- Identify which assets fall inside or outside probate,
- File petitions for summary administration where eligible, and
- Coordinate with banks, brokers, and title companies to transfer property efficiently.
Out-of-State Property and Ancillary Probate
If the decedent lived outside Florida but owned Florida real estate, that property usually requires ancillary probate under Fla. Stat. § 734.102.
Clause Law Group frequently assists families nationwide in completing these limited proceedings without requiring them to appear in Florida. We handle filings, court petitions, and coordination with title companies to ensure proper transfer of ownership.
Planning Ahead to Avoid Probate
Many people take steps during their lifetime to reduce or eliminate probate exposure by:
- Creating a revocable living trust and titling assets into it;
- Adding beneficiary designations on financial accounts;
- Executing Lady Bird deeds for Florida real estate;
- Owning property jointly with a spouse or adult child.
Each option has unique benefits and tax implications. Our firm designs custom estate plans that minimize probate while maintaining control and flexibility.
Final Thoughts
In Florida, whether an asset goes through probate depends entirely on how it’s titled and what legal designations exist at the time of death. A well-planned estate can save your family months of delay and thousands in fees.
At Clause Law Group, we help Florida residents — and out-of-state families with Florida property — identify, protect, and transfer assets efficiently.
If you’re unsure which assets in your estate may require probate, our team can guide you through every step of the process so your loved ones aren’t left waiting.
