Probate Process in Florida Without a Will: What Heirs Need to Know

A family member has passed away, and now you’re learning there’s no will. In the middle of grief, you’re also facing a legal process you never expected to navigate. The probate process in Florida without a will can feel confusing at exactly the moment you have the least energy to sort it out.

The good news: this situation is far more common than most people realize, and Florida law has a clear, step-by-step framework for handling it. This guide walks through that framework in plain language—no legal background required—so you know what to expect, who’s responsible for what, and what happens next.

TL;DR: What Happens When Someone Dies Without a Will in Florida

• The estate goes through intestate probate, meaning Florida law—not the deceased person’s wishes—decides how assets are distributed.
• The probate court appoints a personal representative (Florida’s term for an executor) to manage and close the estate.
• Florida’s intestacy laws set a strict order of who inherits, starting with a surviving spouse and children.
• The process generally takes 9 to 18 months, though smaller estates can move faster.
• Probate can’t be avoided after death, but tools like trusts and beneficiary designations can prevent this process for future generations.

What “Dying Intestate” Means in Florida

“Intestate” simply means someone died without a valid will in place. When that happens, Florida’s default inheritance laws determine who receives the estate’s assets. 

An estate becomes intestate in a few different ways:

• The person never created a will at all.
• A will existed at one point but was later revoked (for example, destroyed or replaced without properly executing a new one).
• A will was created, but is later found invalid by the court—often due to improper signing or witnessing.

This is precisely why estate planning matters: a valid will lets the deceased person choose their own personal representative and decide exactly how assets should be divided, rather than leaving those decisions to a statutory formula. 

If you’re planning your own estate and want to avoid this outcome for your family, it’s worth understanding the difference between wills and trusts and how each one works.

How Florida’s Intestacy Laws Determine Who Inherits

Florida’s probate process—with or without a will—is governed primarily by Chapters 731 through 735 of the Florida Statutes. You don’t need to memorize these, but it helps to know the process isn’t arbitrary; it follows a defined legal structure. 

When there’s no will, Florida Statute 732.102 and related sections lay out a strict order of priority for who inherits. The table below summarizes the most common scenarios.

Heir Category	What They Receive	Conditions
Surviving spouse, no children	Entire estate	No surviving descendants from decedent or spouse
Surviving spouse, all children shared with spouse	Entire estate	All descendants are also descendants of the surviving spouse
Surviving spouse, children from outside the marriage	Half of the estate	Applies when the decedent has descendants who are not also descendants of the surviving spouse
Children (no surviving spouse)	Entire estate, divided equally	Grandchildren inherit their parent’s share if a child predeceased the decedent
Parents	Entire estate	Only if no surviving spouse or descendants
Siblings	Entire estate, divided equally	Only if no surviving spouse, descendants, or parents

The rule that often surprises families involves children from a prior relationship: if the deceased person had children who are not also the surviving spouse’s children, the spouse inherits only half of the estate rather than all of it, with the remainder split among those children. 

This emphasizes the importance of estate planning for blended families—without it, the outcome may not match what either spouse would have wanted.

What Happens to the Estate if No Heirs Exist?

In rare cases, the court cannot locate any qualifying heirs under Florida’s intestacy laws. When this happens, the estate’s assets pass to the State of Florida through a legal process called escheat. This is uncommon, and courts and personal representatives are required to make a genuine effort to locate heirs before this outcome occurs.

Who Initiates Probate When There Is No Will?

One of the most common questions families ask is who becomes executor if there is no will in Florida. Florida uses the legal term personal representative instead of executor, but the role is essentially the same: this person manages the estate, pays debts, and distributes assets to heirs. 

So who initiates the process, and who gets appointed? Florida Statute 733.301 sets a priority order for who may serve:

1. The surviving spouse, if there is one.
2. The person selected by a majority of the heirs.
3. The heir who is closest in degree to the deceased person (if heirs can’t agree).

Importantly, family agreement alone doesn’t grant legal authority. The probate court must formally approve the appointment regardless of what the family has decided among themselves. Until that appointment is made official, no one—not even a surviving spouse with a valid estate plan for married couples—has legal authority to act on behalf of the estate.

This is one area where proper estate planning makes the biggest difference during a family’s lifetime: naming a personal representative in a will removes guesswork and potential disagreement, so everyone knows their role well before it’s needed.

How to Start the Probate Process Without a Will

Starting probate is what gives a personal representative legal authority to act, allows creditors to be properly notified and paid, and ultimately transfers assets to the rightful heirs under Florida law. Here’s how that process unfolds, step by step.

Step 1: File a Petition for Administration with the Probate Court

The process begins with a Petition for Administration, filed in the circuit court of the Florida county where the deceased person lived, or where they owned real property if they weren’t a Florida resident. This petition formally opens the probate case and requests the court to appoint a personal representative.

Because Florida generally requires attorney representation for formal administration (more on that below), a Florida probate attorney typically prepares and files this petition on behalf of the family.

Step 2: Get a Personal Representative Appointed by the Court

Once the petition is filed, the court reviews the proposed personal representative against the statutory priority order and issues Letters of Administration if approved. These letters are the official legal document proving the personal representative’s authority.

Until the court issues Letters of Administration, the personal representative has no legal authority—even if everyone in the family agrees on who should be in charge. Naming a surviving spouse as your representative in your estate plan indicates your wishes to the court, but your spouse must still be issued Letters of Administration before they can legally access accounts, sell property, or act on the estate’s behalf.

Step 3: Notify Creditors and Settle the Estate’s Debts

The personal representative is required to publish a Notice to Creditors and directly notify all of the estate’s known creditors. Creditors then generally have 90 days from the first publication date to file a claim against the estate. 

Important!!! If you think you have a claim against an estate, you MUST get your claim in within the notice period; otherwise, your claim may be forever barred.

The personal representative must review these claims and pay all valid debts and expenses before distributing any assets to heirs.

Step 4: Inventory and Appraise All Probate Assets

Next, the personal representative identifies and values everything that counts as a probate asset—property owned solely in the deceased person’s name, with no other legal mechanism for transfer.

Some assets skip probate entirely, including:

• Property held in joint tenancy with right of survivorship
• Retirement accounts and life insurance with a named beneficiary
• Accounts with a payable-on-death (POD) or transfer-on-death (TOD) designation

Only assets that don’t fall into one of these categories go through the probate inventory process.

Tax Note: Assets that travel outside of probate are still subject to the calculation of any estate tax that might be due. 

Step 5: Distribute Assets to Heirs per Florida Intestacy Law

Once debts are settled and the inventory is complete, remaining assets are distributed according to the statutory heir priority order covered earlier—spouse, children, parents, siblings, and so on. The court must approve the final distribution plan to ensure it follows Florida’s intestacy rules before any transfers are made.

Step 6: Close the Estate with the Probate Court

The personal representative now files a final accounting of everything done during administration and petitions the court for discharge—formally closing the estate and ending the personal representative’s duties.

For a typical formal administration, the entire process—from initial filing to final discharge—takes about 9 to 18 months, though this can vary based on the estate’s complexity.

Formal Administration vs. Summary Administration Without a Will

Not every intestate estate goes through the full process described above. Florida offers two main tracks, and choosing the right one matters from the very first filing.

Track	Eligibility	Typical Timeline	Key Difference
Formal Administration	Estates with more than $150,000 in non-exempt assets, or any estate requiring full court supervision	9–18 months	Requires a court-appointed personal representative with ongoing court oversight throughout
Summary Administration	Non-exempt assets under $150,000, or two or more years have passed since the date of death	A few months	No personal representative is formally appointed; assets are distributed directly by court order

Even when an estate qualifies for the simpler Summary Administration process, Florida’s intestacy laws still determine who inherits. The shorter process only changes the administrative path, not the legal rules about who gets what.

Who Pays for Probate in Florida When There Is No Will

Probate isn’t free, and families are often surprised by the layers of cost involved:

• Attorney fees. Florida Statute 733.6171 provides a statutory fee structure based on the size of the estate, giving families a reasonably predictable starting point.
• Court filing fees set by the individual circuit court.
• Personal representative compensation. Florida law allows the personal representative to be paid a reasonable fee for their time and responsibility, also based on estate value.

Importantly, these costs are paid using estate funds before any assets are distributed to heirs, not out of the personal representative’s own pocket. The absence of a will doesn’t change the base attorney fee structure, but intestate estates can sometimes involve more complexity (locating heirs, resolving disputes over the priority order), which can increase the overall cost of administration.

What Happens if You Never File Probate in Florida

Some families wonder whether they can simply skip probate altogether, especially if the estate seems small or straightforward. Here’s what actually happens if you don’t file probate in Florida:

• Titled assets stay frozen. Real estate, vehicles, and other titled property cannot be legally transferred or sold without going through probate.
• Financial accounts remain locked. Banks and financial institutions generally won’t release funds from accounts held solely in the deceased person’s name without proof of a court-appointed personal representative.
• Debts can’t be officially resolved. Without probate, there’s no formal process for settling the estate’s outstanding obligations, which can leave heirs in legal limbo.

No strict statutory deadline requires families to file probate immediately after a death, but delaying creates real, practical problems. Properties can’t be sold, accounts can’t be closed, and beneficiaries can be left waiting indefinitely.

One important exception: assets that pass outside probate—through joint tenancy, beneficiary designations, or POD/TOD accounts—are unaffected by whether probate is ever filed. Those transfer according to their own terms regardless.

Frequently Asked Questions (FAQs)

Here are answers to the questions families most commonly ask when a loved one dies without a will in Florida.

How Long Does Probate Take in Florida Without a Will?

Formal administration typically takes 9 to 18 months from filing to final discharge. Summary administration, when the estate qualifies, can often be resolved in just a few months. Factors like creditor disputes, disagreements among heirs about the statutory priority order, or a complex asset inventory can extend the timeline in either case.

Can You Avoid Probate in Florida if There Is No Will?

Avoiding probate requires planning that happens before death—tools like joint titling, beneficiary designations, and living trusts. Once someone has died without a will, probate is generally required for any assets that don’t already have one of these mechanisms in place. If you’d like to prevent this process for your own family in the future, an estate plan built around a trust can accomplish that.

Does a House Have to Go Through Probate in Florida When There Is No Will?

Yes — if the property is titled solely in the deceased person’s name, it must be probated before it can be sold or transferred to heirs. The exception is a property held in joint tenancy with right of survivorship, which passes automatically to the surviving co-owner without probate involvement.

What Happens to a Bank Account When Someone Dies Without a Will in Florida?

Accounts with a named beneficiary or a payable-on-death (POD) designation pass directly to that person, bypassing probate entirely. Accounts with no beneficiary designation and no joint owner become part of the probate estate and are distributed according to Florida’s intestacy laws.

Can a Family Member Handle Probate Without a Lawyer in Florida?

For formal administration, Florida law (and Florida Bar rules on the unauthorized practice of law) typically requires a licensed Florida attorney to represent the personal representative, unless the personal representative is the estate’s sole heir. Pro se (self-represented) filings occasionally occur in summary administration, but they remain uncommon given the legal and procedural details involved.

Conclusion

Dying without a will doesn’t mean an estate falls into chaos—Florida law has a clear process for handling it. But it does mean that Florida’s intestacy statutes, not the deceased person’s personal wishes, determine who inherits, and the process tends to be longer, more court-supervised, and more costly than it would be with a proper estate plan in place. 

If you’d like to make sure your own family never has to navigate this process, it’s worth having a conversation about your options. A.J. Yolofsky can guide you through life and legacy estate planning that reflects your wishes—not the state’s rules.