To open a probate estate in Florida, an interested person (usually the named executor or a close family member) files a petition for administration with the circuit court in the county where the decedent lived, along with the original will and a certified death certificate. The court then issues “letters of administration” appointing a personal representative who has legal authority to gather assets, pay debts, and distribute what remains. In most Florida estates this petition must be filed through a licensed Florida attorney, and the case is governed by the Florida Probate Code (Chapters 731 through 735, Florida Statutes).
I have spent years moving families through this process, including a fair number who came to me after a contested guardianship turned into a probate matter when the protected person passed away. The mechanics are not complicated once you understand the sequence, but Florida has its own rules and its own vocabulary, and small missteps early on tend to compound. Below is how the process actually works, written plainly.
What “Opening” a Probate Estate Really Means
Opening an estate is the formal act of asking a court to recognize that someone has died and that a particular person should be put in charge of settling their affairs. Until the court does this, no one has legal authority to access bank accounts in the decedent’s sole name, sell real property, or pay creditors from estate funds. The bank will turn you away. The title company will not close. That authority comes only from the court order and the letters that follow it.
Florida recognizes more than one path, and choosing the right one is the first real decision. If you are dealing with a New York decedent or assets in New York rather than Florida, the framework is different, and Morgan Legal’s overview of the is a useful starting point, because the two states are not interchangeable.
The Two Main Types of Florida Probate Administration
- Formal administration. This is the standard, full court-supervised process used for most estates. It is required when the value of the probate assets (excluding exempt homestead) exceeds $75,000, or when the death occurred within the last two years.
- Summary administration. A faster, lighter procedure available when the probate estate is worth $75,000 or less, or when the decedent has been dead for more than two years. There is no personal representative appointed in a summary case; the court enters an order distributing assets directly.
There is also a narrow shortcut called disposition of personal property without administration, used only for very small estates where assets are limited to exempt property and modest final expenses. Most families I work with land in formal administration. Just as New York layers its own options, Florida does too, and it is worth understanding that there are genuinely across jurisdictions, each with its own thresholds and tradeoffs.
Step One: Confirm You Actually Need Probate
Not every asset passes through probate, and a surprising number of estates need very little of it. Assets that transfer outside of probate include:
- Jointly held property with rights of survivorship
- Accounts with a valid payable-on-death (POD) or transfer-on-death (TOD) beneficiary
- Life insurance and retirement accounts with named living beneficiaries
- Property titled in a funded revocable living trust
- Florida homestead passing to heirs (though it often still requires a court order confirming its protected status)
What lands in probate is property the decedent owned in their sole name with no beneficiary designation. If everything was held jointly or in trust, you may not need to open an estate at all. This is the first thing I check, because it can save a family months and several thousand dollars. If you are still building your plan, a properly drafted set of wills and trust documents is what keeps your own family out of a contested probate later.
Step Two: Locate the Will and Lodge It With the Court
Florida law requires that the custodian of an original will deposit (or “lodge”) it with the clerk of the circuit court within ten days of learning of the death, under Florida Statute 732.901. This is mandatory and separate from opening the estate itself. The original document matters: Florida is strict about wills, and probating a copy is far harder than probating the signed original.
If there is no will, the estate is “intestate,” and Florida’s intestacy statutes (Sections 732.101 through 732.111) dictate who inherits and in what shares. The spouse and descendants come first; the formula shifts depending on whether the decedent had children from a prior relationship.
Step Three: File the Petition for Administration
This is the act that formally opens the estate. The petition is filed in the circuit court of the county of the decedent’s domicile and typically includes:
- The petition for administration itself, identifying the petitioner and the proposed personal representative
- The original will, if one exists
- A certified copy of the death certificate (often a version with the cause of death redacted for the public file)
- An oath of the personal representative and a designation of a Florida resident agent
- Filing fees, which vary by county but commonly run around $400
One rule catches many people off guard: with limited exceptions, Florida requires that a personal representative be represented by a licensed Florida attorney. This is not a marketing pitch, it is built into the Florida Probate Rules. A sole heir who is also the sole personal representative is one of the few who may proceed without counsel. For everyone else, the court will not accept the filing from a non-lawyer. If your matter touches Florida real estate or a Florida-domiciled decedent, our Florida probate team handles these filings regularly.
Step Four: Qualifying as Personal Representative
Florida is choosier than many states about who may serve. Under Section 733.302 and the sections that follow, a personal representative must be either a Florida resident, or, if a non-resident, a close relative of the decedent (spouse, child, parent, sibling, or certain others by blood or marriage). A friend or distant acquaintance living out of state cannot serve, no matter what the will says. A person who is a minor, who has been convicted of a felony, or who is mentally or physically unable to perform the duties is also disqualified.
When the will names someone, the court generally honors that choice. When there is no will, the surviving spouse has first priority, followed by the person selected by a majority of the heirs, then the heir nearest in degree. Once qualified, the personal representative receives letters of administration, the single most important document in the case. That piece of paper is what you hand to the bank, the brokerage, and the county to prove you have authority to act.
When Guardianship Becomes Probate
Because our focus includes contested guardianship-to-probate transitions, this deserves its own note. When a person under guardianship dies, the guardian’s authority ends at the moment of death. It does not roll over into probate. A new petition must be filed, and the guardian is not automatically the personal representative. I have seen families assume otherwise and lose weeks. If the guardianship was contested, expect the same disputes (over who is trustworthy, who acted properly with the protected person’s money) to resurface in the probate. The guardian must also file a final guardianship accounting, and that accounting frequently becomes the opening battleground of the estate case. Plan for it rather than being surprised by it.
Step Five: Notice to Creditors and the Claims Period
After appointment, the personal representative must publish a Notice to Creditors in a local newspaper and serve known or “reasonably ascertainable” creditors directly. This triggers the claims window under Florida Statute 733.702. Creditors generally have three months from the first publication, or thirty days from being served, to file claims. Properly served and the clock starts; sloppily handled and creditors can come back later. There is also an outer limit: Section 733.710 generally bars claims filed more than two years after death regardless of notice.
The personal representative also serves a Notice of Administration on beneficiaries and others with an interest. This is the moment when anyone who wants to challenge the will or object to the personal representative is put on the clock, typically a strict ninety days to act.
Step Six: Inventory, Administer, and Close
Within sixty days of appointment, the personal representative files an inventory listing the estate’s assets and their date-of-death values. From there the work is methodical:
- Secure and value all probate assets
- Open an estate bank account and consolidate funds
- Pay valid creditor claims, taxes, and administration expenses in the statutory order of priority
- Resolve any disputes or will contests
- Distribute the remainder to beneficiaries
- File a final accounting and a petition for discharge to close the estate
An uncontested Florida formal administration commonly takes six months to a year. Add a will contest, a messy guardianship accounting, or out-of-state real property, and that timeline stretches. The single best predictor of a smooth case is how cleanly the estate was opened in the first place.
A Few Hard-Won Practical Notes
Order several certified death certificates at the outset, because every institution wants its own. Keep estate money strictly separate from personal money, because commingling is how good personal representatives end up in surcharge litigation. And do not distribute anything to beneficiaries until the creditor period has closed, no matter how much pressure you feel. Early distributions that leave the estate unable to pay a late-arriving valid claim can land on the personal representative personally.
If you are unsure which administration applies, whether probate is even required, or how a prior guardianship affects your options, that is exactly the conversation to have before you file anything. You can reach our office or read more about Florida-specific procedure on our Florida probate page. Opening an estate correctly is not glamorous work, but it is the foundation everything else rests on.
Frequently Asked Questions
Do I need a lawyer to open a probate estate in Florida?
In most cases, yes. Florida Probate Rules require a personal representative to be represented by a licensed Florida attorney. The main exception is a sole heir who is also the sole personal representative, or certain summary administration situations. The court will generally not accept a formal administration filing submitted by a non-lawyer.
How long does it take to open and complete probate in Florida?
Opening the estate (filing the petition and obtaining letters of administration) can take a few weeks. Completing a typical uncontested formal administration usually runs six months to a year, largely because of the mandatory creditor claims period. Will contests, guardianship accountings, or out-of-state property can extend it well beyond that.
What is the difference between formal and summary administration in Florida?
Formal administration is the full, court-supervised process with an appointed personal representative, required when probate assets exceed $75,000 or the death occurred within the last two years. Summary administration is a faster procedure for estates of $75,000 or less, or where the person died more than two years ago, and it does not appoint a personal representative.
What happens to a probate estate if the person died without a will in Florida?
The estate is administered as intestate under Florida Statutes Sections 732.101 through 732.111. These statutes dictate who inherits, with the surviving spouse and descendants taking priority. The court appoints a personal representative based on statutory priority, usually the surviving spouse, then a majority choice of the heirs, then the nearest heir.
Does a guardian automatically become the personal representative when the ward dies?
No. A guardian’s authority ends at the moment of the protected person’s death and does not carry over into probate. A new petition for administration must be filed, the guardian is not automatically appointed personal representative, and the guardian must still file a final guardianship accounting, which can become a point of dispute in the estate.
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