What is probate?

Probate in the state of Florida is the court’s process for settling a person’s estate. Found in state statutes’  chapters 731-735,  the Florida Probate Code allows the courts to pay a person’s debts as well as distribute his or her assets after death.


Probate courts in Florida have jurisdiction in the settling of estates, whether the deceased has a will in place or not. If there is a will, it isn’t valid unless it’s been admitted to probate, and assets cannot be passed to beneficiaries. Probate is often used to prevent fraud after someone dies and does not have a will in place.


The Florida Probate Code outlines what is likely to happen if someone dies without a will based on his or her marital status, whether community or separate property (property obtained during or prior to the marriage) is involved and whether or not children and/or other relatives are in the picture. Here’s a look at the possibilities.


  • A spouse and children: The surviving spouse inherits all of the deceased spouse’s probate estate. If the surviving spouse has children with someone who is not the deceased’s children, the estate will be split in half between the surviving spouse and the deceased’s children. still receives the entire probate estate.
  • Descendants only: The descendants inherit the entire probate estate.
  • A spouse, but no children or other relatives:  The surviving spouse inherits the probate estate.
  • No spouse or children: The probate estate will go to the deceased’s parents or brothers and sisters.


Keep in mind, debt and the courts are paid first. The distribution of the probate estate is subject to exceptions for homestead property, exempt personal property and a statutory allowance to the person’s spouse and descendants. All the rules are outlined in the Florida Probate Code.


Probate is complicated. It is expensive. It is lengthy. Probate often causes hurt feelings and financial headaches for the loved ones you’ve left behind. The best way to avoid probate is to draft a will or trust with a qualified Florida estate planning attorney. A legal will can help ensure your estate is properly handled by an executor you choose, instead of someone who ultimately may not be the best person for the role.
Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law.  Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

5 Things to Consider when Choosing a Nursing home

5 things to consider ebook

Upcoming Events

No event found!
Prev Next

Protect yourself & those you love

No matter where you are in life’s journey, we can help.

Whether you need to update your estate plan, are preparing for future long-term care needs, have a loved one entering or already in a nursing home, or need help administering an estate, our team is here.

We have 5 convenient locations throughout the Treasure Coast area and are ready to serve you.

Take your first step by contacting us today.

Skip to content