Overview of the Florida Probate Code

Probate laws are set forth in the Florida Statutes Chapters 731 through 735.  These statutes are known as the Florida Probate Code.  In Florida, probate is a court-supervised process used to identify, gather and inventory the assets of an individual who has died.  The probate process works to ensure the decedent’s debts and tax obligations are properly addressed, paid and that all remaining property can be distributed to the decedent’s beneficiaries.

When an individual dies and leaves a will, the will must be proved as valid during the probate process.  If the decedent does not have a will, the Florida Intestate Succession laws prescribe how the probate assets are to be distributed among the decedent’s heirs.  Chapter 732 of the Florida Probate Code (Intestate Succession and Wills) sets forth the specific rules of distribution that must be followed when a decedent does not have a valid will or if a valid will does not properly dispose of all of the probatable assets.   

The Chapter also sets forth the procedures for “escheat” when a person dies with an estate “without being survived by any person entitled to a part of it.”  In these situations, the property escheats (reverts) to the state and will be sold in accordance with the Florida Probate Rules.   

In Florida, when a spouse dies, the surviving spouse has the right to take an elective share of the estate.  The right to an elective share exists regardless of whether the deceased spouse had a will, which included the surviving spouse.   This means when a surviving spouse is disinherited or receives less property under the will than he or she is entitled to under the Florida probate laws, the surviving spouse has the right to exercise an elective share. Chapter 732, Part II of the Florida Probate Code is titled “Elective Share of Surviving Spouse; Rights In Community Property.”  This section sets forth the statutory amount that a surviving spouse is entitled to receive from the deceased spouse’s estate along with the specific procedures that must be followed when the spouse exercises the elective share right.

Florida probate laws provide for two different types of probate: summary administration and formal administration.  Chapter 735 of the Florida Probate Code sets forth the procedures to be used for small estates that qualify for summary administration.  This Chapter also contains the criteria to be used in a very limited, non-court supervised proceeding called “Disposition of Property Without Administration.”  When an estate is not eligible for summary administration, the estate must proceed through the formal probate administration process.  Chapter 733 sets forth the rules and processes for formal administration, including the appointment of a personal representative and the specific powers, responsibilities and duties required of the personal representative.

Florida probate laws can be very difficult to navigate and understand. If you have questions about these laws, you can learn more about the rules and procedures governing the probate administration process on the Probate Information section of our website.