The Florida Probate Questions People Are Too Embarrassed to Ask a Lawyer

There is a particular kind of question people ask me in a lowered voice, usually near the end of a meeting, usually starting with “this is probably a dumb question, but —”

It is never a dumb question. It is almost always the question that has actually been keeping them up.

So let me say what I say in my office, right here at the top: there is no such thing as a stupid question. This is what I am here for. You are dealing with something you have likely never dealt with before, in a system with its own vocabulary, at the worst possible moment in your year. Not knowing the rules is not a character flaw. It is Tuesday.

What follows are the twelve questions I get asked most often in that lowered voice. Real answers, plain language, no judgment. If yours is not here, call and ask it — 305-224-6811.

Can I drive my mother’s car after she dies?

You would be amazed how many people are driving around Florida quietly convinced they are committing a crime.

Here is the honest picture. No Florida statute makes it unlawful, on its face, to drive a car whose owner has died. The provision people get pointed to — § 319.34, which addresses failure to obtain title — was not written for this situation, and how it applies to an heir driving the family car in the weeks after a death is genuinely unsettled rather than clearly prohibited. Anyone who tells you flatly that it is illegal is telling you more than the statutes do.

Two practical things do matter, though, and they matter more than the theory:

Registration. The registration does not evaporate at death, but it also cannot be renewed by someone who is not the owner. If the tag expires while the estate is unsettled, you now have an ordinary and very ticketable problem.

Insurance. This is the real risk, and it is not a statutory question at all — it is a contract question. Whether the policy still covers a permissive driver after the named insured’s death is answered by the policy language and by the carrier. Call them. Do not assume, and do not wait to find out at the scene of an accident.

The short version: the sky is not falling, but call the insurance company this week.

How do I transfer the car without opening a probate?

Often you can, and this is one of the genuinely good pieces of news in Florida law.

Section 319.28(1)(b) provides a route for transferring a title where the owner died without a will, on an affidavit that the estate is not indebted and that the surviving spouse and heirs have amicably agreed on the distribution. That is it. That is the whole test.

A couple of details worth knowing, because they are commonly misstated:

• The statute is written around heirs in an intestate estate. It does not use the word “beneficiary,” and it is not a mechanism for carrying out a will.
• The statute itself contains no death-certificate requirement. That does not mean a tax collector’s office will not ask for one — offices have their own document practices — but it is not in the statute.

And one thing Florida simply does not have, no matter what you read on a message board: there is no transfer-on-death designation for a vehicle in Florida. The closest thing is titling a car to two people with “or” between the names under § 319.22(2)(a)1.a, which lets the survivor transfer it. If the title says “and,” that does not work. Go look at the title. People are often surprised by which word is on it.

Do I have to give back the Social Security payment that came after the death?

This one produces real dread, because the money is usually already spent.

Take a breath. The rule is more nuanced than the internet version of it.

Social Security is paid in arrears — the payment that arrives in a given month is for the previous month. That is why the general rule under the federal regulations (20 C.F.R. §§ 404.311(b) and 404.316(b)(1)) is that benefits end with the month before the month of death, and the payment that lands after the death is therefore not due.

But “the general rule” is doing work in that sentence. Social Security’s own operating manual, POMS GN 02408.650, recognizes situations where a post-death payment does not have to be returned. So the reflexive “you always have to pay it back” is not accurate either.

What you should actually do: report the death promptly, do not spend the payment if it is still sitting there, and do not panic if it is not. This is a fixable, ordinary administrative matter, not an accusation.

While we are here — there is also a lump-sum death payment of $255 available to a surviving spouse or, in the tiers set out at 20 C.F.R. §§ 404.390 and 404.392, to certain children. It is not much, but it is real, and there is a two-year deadline to claim it that people routinely miss because nobody told them it existed.

How do you get the $255 Social Security death benefit?

First, the number. An enormous number of people search for the $250 death benefit, and there is no such thing — the Social Security lump sum death benefit is $255, and it has been that figure for a very long time. So if you were looking for $250, you have found the right payment.

Second, who gets it. It is not paid to the estate and it is not paid to whoever asks first. A surviving spouse who was living with the deceased receives it; failing that, a surviving spouse eligible on the deceased person’s record; failing that, a child eligible on that record. Those tiers are set out at 20 C.F.R. §§ 404.390 and 404.392. Does everyone get the $255 death benefit from Social Security? No — if nobody falls into those categories, it is simply not paid.

Third, the deadline. You have two years from the date of death to claim it, and it is not paid automatically. Report the death, then ask specifically for the lump sum. It is a small amount of money and a very common thing for families to miss entirely.

I threw away the will. Did I just destroy it legally?

Almost certainly not, and this is one of the most relieving answers I get to give.

Under Florida § 732.506, a will is revoked by act only when the act — burning, tearing, canceling, defacing, obliterating, destroying — is done by the testator, or by another person in the testator’s presence and at the testator’s direction, and with the intent to revoke.

Read those requirements again with yourself in mind. You are not the testator. You were not acting at the testator’s direction, in the testator’s presence. So the will was not revoked by what you did. It still exists as a legal instrument; what you have is an evidence problem, not a revocation.

(One footnote, since it circulates: the “clear and convincing evidence” standard people cite in this area applies to electronic wills, not to paper ones.)

The evidence problem is solvable. Section 733.207 governs establishing a lost or destroyed will, generally through the testimony of two disinterested witnesses — or one, if a correct copy of the will is provided. So if there is a photocopy, a scan, an email attachment from the drafting attorney, or a PDF on somebody’s phone, say so early. It changes the whole proceeding.

The will has been in my drawer for months. Am I in trouble?

Less than you fear, but do not let it sit another week.

Florida § 732.901 requires the custodian of an original will to deposit it with the clerk of the circuit court within 10 days after receiving information that the testator is dead. Note the trigger — it runs from when you received information of the death, not from the death itself.

If you are past that, here is the part nobody tells people: the sanction is fee-shifting only — costs and attorney’s fees — and it is expressly gated on the custodian having had “no just or reasonable cause” for the delay. Grief, not knowing the rule existed, and not realizing you were the “custodian” are the sorts of things that fit comfortably inside “just or reasonable cause.”

There is no forfeiture of your inheritance. There is no criminal charge. There is a clerk’s window, a short form, and no filing fee to deposit. Go do it, and stop carrying it around.

Can I take money out of the account to pay for the funeral?

I understand completely why people do this. It is their money, it is their funeral, and the funeral home wants a deposit before anything happens.

But the account does not work that way once the owner dies. It belongs to the estate, or to a surviving joint owner, or to a payable-on-death beneficiary, depending on how it was titled — and none of those are “whoever has the debit card.” Using an old power of attorney to reach it does not work either; that authority ended at death.

There are proper routes, and they are not as slow as people assume:

Route	What it does
§ 735.301, disposition without administration	A short court filing for very small estates — exempt property plus limited personal property. Worth being precise: this statute has no dollar cap written into it and no automatic reimbursement language. Funeral reimbursement is a discretionary court authorization, not an entitlement.
§ 735.303	A bank may pay out a small balance to a statutorily designated recipient once six months have passed
§ 735.304	A somewhat more generous alternative where there is no will, available after one year
Summary administration	Non-exempt value at or below the threshold — raised to $150,000 by chapter 2026-57 — or a death more than two years ago

And one thing that surprises people: no Florida statute requires a bank to freeze an account when a customer dies. The freeze you are running into is coming from the deposit agreement and the bank’s internal policy, not from a law. That is worth knowing, because it means the conversation with the bank is a negotiation about their rules, not an appeal against a statute.

I already took money out. What now?

You are not the first, you will not be the last, and the fix is almost always easier than the anxiety.

Two provisions frame the exposure. Section 733.309 covers what the law calls an executor de son tort — someone who takes possession of or intermeddles with estate property without authority. The claim it creates is civil, and it belongs to the personal representative or curator, not to individual relatives. And where a power of attorney was used, § 709.2117 makes the agent liable for restitution to the principal’s successors in interest — meaning whoever inherits.

Now the practical part. Three things determine how this actually resolves:

What the money went to. A funeral deposit, a mortgage payment that preserved a house the estate was going to sell, a utility bill that kept the pipes from freezing — these sit in a completely different category from a transfer to your own account. Florida’s payment-priority scheme in § 733.707 matters here; an expense that would have been paid anyway, in a class the estate would have reached, is a far more defensible position.

Whether you told anyone. Disclosing it yourself, early, in writing, to the other heirs and to the personal representative, changes the character of the whole thing. It always surfaces during the estate accounting. Always. It is a completely different conversation when it surfaces because you raised it.

Whether you stopped. One transaction before you understood the rule is a mistake. A pattern after you understood it is something else.

What does not help: quietly moving the money back, or shifting it to another account to “keep it safe.” That creates a second unauthorized transaction on top of the first. Leave it where it is and get advice.

Is it too late if it has been years?

No. This is probably the single most common thing people are embarrassed about, and it is the one where the embarrassment is least warranted. If you are searching how long do you have to file probate after death in Florida, the honest answer is that there is no deadline that closes the door on you.

Florida has no rule that closes the door on you after a year or five. In fact, time can help you: an estate becomes eligible for summary administration if the death occurred more than two years ago, regardless of value. The delay you are apologizing for may have opened a simpler and cheaper procedure than the one that was available at the time.

I regularly handle estates opened a decade or more after the death. Usually the trigger is that somebody is finally trying to sell a house and title turns up a dead owner on the deed. That is a normal Tuesday, not a scandal.

The real cost of the delay is practical, not legal — witnesses are harder to find, records are gone, memories have hardened into positions. Which is an argument for starting now, not for continuing to wait.

Do I have to sell the house?

Usually not, and the assumption that you do causes an enormous amount of unnecessary grief.

Whether the house has to be sold depends on things like whether it qualifies as homestead — Florida homestead property carries constitutional protections from creditors of the estate and passes under its own set of rules — whether the estate has debts that cannot be paid another way, and whether the people who inherit it agree about what to do with it. Very often the honest answer is that the house does not have to be sold to satisfy anyone; the heirs simply cannot agree, which is a family problem wearing a legal costume.

There is a related point people get wrong constantly: minor children do not block the sale of homestead. The alienation provision in Article X, section 4(c) of the Florida Constitution requires spousal joinder. It says nothing about children. The rule people are half-remembering is about devise — who the homestead can be left to — not about selling it.

Can I just keep the jewelry nobody else wants?

I love this question, because of what is underneath it — the worry that you have already stolen something.

Legally: the personal effects are estate assets, and they get distributed under the will or under Florida’s intestacy rules like everything else. Practically: in most families, the ring, the watch, the tools in the garage, and the good dishes are distributed by conversation, and nobody ever files anything about it.

The distinction that matters is not value, it is agreement. Items everyone has agreed you should have are not going to become a problem. Items you took quietly, before anyone else looked at them, can become a very large problem in a family that later stops getting along — and by then, the object has stopped being a keepsake and started being evidence.

So the answer is: probably yes, and put it in a group text. One message listing what you took, sent to everyone, is worth more protection than any argument you will make later.

Where the items are worth real money and nobody in the family can price them — a card collection, coins, watches, a wall of guitars — the stakes change and so does the advice. Here is how Florida handles a collection, and the one letter a beneficiary can send to find out how it was valued.

Does every estate have to go through probate in Florida?

No, and a fair number of the people who call me turn out not to need probate at all — which I tell them, and then the call is over.

Probate reaches assets that the deceased person owned in their own name alone, with no beneficiary designation and no survivorship. Everything else passes outside it:

• Assets titled in a revocable trust — the successor trustee’s authority begins at death
• Payable-on-death and transfer-on-death accounts, retirement accounts, life insurance with a living named beneficiary
• Property held with rights of survivorship or, between spouses, as tenancy by the entireties
• Homestead passing to heirs, which has its own treatment

Two Florida-specific corrections, because both circulate widely and both are wrong: Florida has no transfer-on-death deed for real property. Chapter 711 covers securities, not land. And as noted above, Florida has no vehicle transfer-on-death either.

If the entire estate consists of trust assets, beneficiary designations, and jointly held property, there may be nothing to open. That is a fifteen-minute conversation, and it is worth having before you spend money.

Do I need a lawyer, or can I do this myself?

I will give you the straight answer even though it is against interest in one direction and for it in the other.

For formal administration and summary administration, Florida Probate Rule 5.030 generally requires the personal representative to be represented by an attorney, with narrow exceptions — one of which is where the personal representative is the sole interested person. That is a court rule, not a marketing position; you will hit it at the clerk’s window whatever you and I think about it.

For disposition without administration under § 735.301, people do file on their own, and some of them do it fine.

The place where doing it yourself gets expensive is not the paperwork — it is § 733.609, which makes the personal representative personally liable for breach of fiduciary duty in administering the estate. Paying the wrong creditor first, distributing before the creditor period closes, or missing a claim can land on you personally rather than on the estate. That is the risk being purchased when someone hires counsel, and it is worth understanding clearly whichever way you decide.

What if I cannot afford to open a probate?

Ask anyway. Please.

Not every estate needs formal administration, and the cheaper procedures are real procedures, not consolation prizes — summary administration and disposition without administration exist precisely because the Legislature did not want small estates crushed by the cost of a full one. Sometimes the answer is that the estate can pay its own administration costs from the assets it holds, which means the cost is not coming out of your pocket at all.

The one thing that reliably makes this more expensive is waiting until it is a crisis — a foreclosure notice, a closing date, a lawsuit. The version of this problem you have today is the cheapest version of it you will ever have.

One more time, because it matters

If you got to the bottom of this page and your question was not on it, that does not mean your question is too small or too strange. It means I have not been asked it enough times yet.

There is no such thing as a stupid question. This is what I am here for.

Call and ask. If the answer is “you do not need probate and you do not need me,” I will tell you that, and it will not cost you anything to hear it.

Jose M. Lorenzo, Jr. — 305-224-6811.

This article discusses Florida law as of 2026 and is general information, not legal advice about your particular situation. Statutes change and the facts of your family’s situation matter enormously. Talking to an attorney about your own circumstances is the only way to know how these rules apply to you.