How to Avoid Probate in Florida

Probate is the court-supervised process of paying a deceased person’s debts and distributing their assets according to a will or, if there is no will, according to Florida’s intestacy laws. Probate in Florida typically takes six months to two years and involves statutory attorney fees that scale with the estate’s value. On a $500,000 estate, statutory fees alone reach approximately $15,000, and the personal representative can claim a matching fee. Probate records are public, meaning anyone can access the will, asset inventory, and beneficiary information.

Florida law provides several ways to transfer assets outside of probate. The right approach depends on the types and number of assets involved.

Revocable Living Trust

A living trust is the most comprehensive way to avoid probate in Florida. You transfer ownership of your assets to a trust during your lifetime, name yourself as trustee and primary beneficiary, and designate a successor trustee and future beneficiaries. When you die, the successor trustee distributes trust assets directly to your beneficiaries without any court involvement. Every asset titled in the trust avoids probate.

A living trust also provides incapacity planning, privacy (the trust terms never become public record), and the ability to manage distributions over time through provisions for minor children, spendthrift protection, or staged distributions. For Florida residents with multiple assets, a living trust is typically the single most effective probate avoidance tool.

The cost of a living trust package in Florida ranges from $1,500 to $4,500 and typically includes the trust agreement, a pour-over will, durable power of attorney, and health care directives. The upfront cost is substantially less than the probate fees the trust eliminates.

Lady Bird Deed

A lady bird deed (enhanced life estate deed) transfers a specific piece of Florida real estate to named beneficiaries at the owner’s death without probate. The owner retains full control during life, including the right to sell, mortgage, or revoke the deed at any time. When the owner dies, the beneficiaries record a death certificate with the county to establish ownership.

A lady bird deed is effective for homeowners whose primary probate concern is their residence. It costs $400 to $1,000 and requires no ongoing administration. The beneficiaries receive a full stepped-up tax basis, and no gift tax is triggered at execution.

The limitation is scope. A lady bird deed covers only one property. It does not address bank accounts, investment accounts, vehicles, or any other assets. Homeowners with multiple assets need additional tools.

Beneficiary Designations

Many financial assets can pass outside probate through beneficiary designations. The account owner names a beneficiary on the account, and the asset transfers directly to that person at death without probate.

Retirement accounts including IRAs, 401(k) plans, and 403(b) plans transfer to the designated beneficiary by operation of the account agreement and federal law. The will has no effect on these accounts. Life insurance proceeds are paid directly to the named beneficiary and are not part of the probate estate. Bank accounts can include a payable-on-death (POD) designation under Florida Statute § 655.82, directing the account balance to a named beneficiary at death. Brokerage and investment accounts can include a transfer-on-death (TOD) beneficiary designation under the Uniform Transfer on Death Securities Registration Act.

In each case, the account owner retains full control during life and can change the beneficiary at any time. The designated beneficiary has no rights to the funds until the owner dies.

Beneficiary designations are simple and free to set up. The risk is that they are easy to overlook or forget to update. A beneficiary designation that names an ex-spouse, a predeceased family member, or no one at all can create significant problems. Beneficiary designations should be reviewed as part of any estate planning process.

Joint Ownership with Right of Survivorship

Property held as joint tenants with right of survivorship or as tenants by the entirety (available only to married couples) passes automatically to the surviving owner at death. No probate is required for the jointly held asset.

Joint ownership is effective for married couples who want the surviving spouse to receive the asset immediately. Tenancy by the entirety provides the additional benefit of protecting the property from the creditors of either individual spouse.

Joint ownership has limitations as a probate avoidance strategy. It only works while there is a surviving co-owner. After the first owner dies and the surviving owner holds the asset individually, the asset will require probate at the surviving owner’s death unless another arrangement is in place. Joint ownership with non-spouses (such as adding a child to the deed) can create gift tax issues, expose the asset to the co-owner’s creditors, and eliminate the stepped-up basis on the co-owner’s share.

Assets That Do Not Require Probate

Several categories of assets pass outside probate regardless of what the will provides. Understanding which assets are already exempt helps identify what still needs to be addressed.

Homestead property passes to the surviving spouse or heirs under Florida’s constitutional homestead provisions. If the deceased owner was married, the surviving spouse is entitled to at least a life estate in the homestead. The property does not go through traditional probate, though a simplified court proceeding may still be required to confirm the transfer.

Property held in joint ownership with right of survivorship passes to the surviving owner automatically. Accounts with beneficiary designations (POD, TOD, retirement accounts, life insurance) pass directly to the named beneficiary. Property held in a living trust passes according to the trust terms. Property transferred by lady bird deed passes to the named remainder beneficiaries.

Assets that typically do require probate include individually owned real estate without a lady bird deed or trust, individually owned bank and brokerage accounts without beneficiary designations, vehicles titled solely in the deceased person’s name, and tangible personal property such as furniture, jewelry, and artwork.

Choosing the Right Approach

For most Florida residents, the answer is not a single tool but a combination. A living trust handles the bulk of assets. A lady bird deed may be used for the homestead if it is not transferred into the trust. Beneficiary designations cover retirement accounts, life insurance, and financial accounts. A pour-over will serves as the safety net for anything that falls through the cracks.

The result is an estate where little or nothing passes through probate. The successor trustee administers the trust privately, the lady bird deed transfers the home automatically, beneficiary designations direct financial accounts to the right people, and the pour-over will catches any remaining assets.

For individuals with simpler estates, a lady bird deed combined with beneficiary designations and a basic will may be sufficient. The right combination depends on the number and type of assets, the family situation, and the level of control the owner wants over post-death distributions.