What Are Florida’s Estate Planning and Probate Laws?

The rules and regulations that apply to wills, trusts, and probate

In Florida, estate planning and probate laws govern how assets are distributed upon death and how individuals can plan for their estates. These laws cover various aspects, including the creation of wills, trusts, and powers of attorney, as well as procedures for probating estates, determining heirs, and handling intestacy (when someone dies without a valid will).

The Florida Probate Code governs estate planning and probate matters. When there’s a suspected violation, a probate litigation attorney can ensure legal validity, represent clients in court, and advocate for their interests. If you need the legal services of a probate litigation attorney in South Florida, contact The Levy Firm PLLC in Fort Lauderdale for a free consultation.

Florida estate planning and probate laws

Florida's estate and taxation laws are unique in the U.S., offering protection for property and assets by not taxing income, inheritance, and many financial transactions. Here are some of Florida’s most relevant estate planning and probate laws, rules, and regulations:

• Will and Testament Validity. Under Florida law, a will must be signed by the testator and two witnesses to be legally valid. It is not required that a will be notarized, but doing so makes the document more solid and less likely to be challenged.
• The 10-day Rule. In Florida, probate law requires that a copy of the death certificate be filed with the court within 10 days of learning of the death, along with the petitioner's address for service of documents. This rule applies to both formal and summary administration proceedings.
• Homestead Act. Florida law protects a residence from estate creditors, allowing it to be left to children, but outstanding mortgage, tax, or contractor debts can affect the property. Specific criteria define homestead status, and if the decedent has a spouse or children, the property must transfer to them, overriding any contrary will provisions, with potential inheritance by grandchildren in certain situations.
• Intestate. When individuals die without a will, their assets go through probate and are distributed according to Florida's intestate laws, prioritizing co-owners, named beneficiaries, spouses, children, and other relatives, as determined by intestate share laws.
• Out of State Decedents and Ancillary Administration. When individuals own property in multiple states, they typically require probate proceedings in each state: a "domiciliary" probate where they lived and an "ancillary" probate where they owned property. Lawyers coordinate to ensure assets are transferred correctly to beneficiaries, following procedures governed by Florida Statutes in Florida.
• Creditors. In Florida, creditors' powers to settle debts vary based on the probate process used and asset protection; typically, creditors have 30-90 days after the death notice to file a claim for repayment in a probate case, with late claims subject to denial, and the estate administrator can contest unfair claims.
• Personal Representative Qualifications. The personal representative in Florida has the legal obligation to administer the probate estate according to state law, which includes various significant duties. To be a personal representative, the individual must be a Florida resident or a close relative of the deceased, at least 18 years old, and not incapacitated or a convicted felon. Florida-incorporated trust companies or authorized banks can also fulfill this role.
• Summary Administration. Summary Administration expedites probate for small Florida estates valued at less than $75,000, excluding exempt items like homestead properties; however, it may restrict personal representatives' powers, potentially complicating the handling of the decedent's financial, business, and other obligations.
• Exempt Property. Not everything you own is eligible for probate. There are many types of assets that are exempt from public review and distribution. Exempt property passes to designated beneficiaries. Depending on your estate plan, assets that are exempt from probate may include:
  • Homestead Homes and Furnishings
  • Most Trusts
  • Life Insurance Policies
  • Annuities

It is worth noting that Florida counties may have their own regulations that must be followed regarding estate and probate litigation and processing. With 10 years of experiencing providing legal services throughout South Florida, The Levy Firm PLLC is prepared to protect your interest in any of our region’s courts.

Use the law to protect your legacy

Florida has some excellent estate planning laws, but to benefit, you need to understand and use them effectively. Ensure your estate plan is in compliance with all Florida, federal, and local laws – Contact The Levy Firm PLLC for a free consultation.