Who Gets the Last Social Security Payment After Death?

Short answer: a qualifying surviving spouse, and the estate is dead last. If you have been told “it goes to the estate,” you were told wrong, and it matters, because the two lead to completely different people. Any benefit that was due and unpaid at death is a Social Security underpayment, and it is claimed on Form SSA-1724, “Claim for Amounts Due in the Case of a Deceased Beneficiary.” The order of payment is fixed by statute and set out in SSA’s operating manual at POMS GN 02301.030: OrderWho1Surviving spouse living in the same household at death, or entitled on the same record for the month of death2Children entitled to benefits on the same record for the month of death3Parents entitled on the same record for the month of death4A surviving spouse who does not qualify under 15Children who do not qualify under 26Parents who do not qualify under 37Legal representative of the deceased’s estate Where more than one person sits in the highest surviving category, the underpayment is divided equally among them.

Florida Probate Questions People Are Embarrassed to Ask (2026)

The Florida probate questions people are most embarrassed to ask a lawyer are almost always the ones that have actually been keeping them up at night. Can you drive your mother’s car after she dies? Do you have to give back the Social Security payment that landed after the funeral? You threw away the will — did you just destroy it? You already took money out of the account. This page answers the fifteen Florida probate questions we at Lorenzo Law get asked most often in a lowered voice, with the actual Florida statutes behind each answer, because the honest answer is usually far less frightening than the thing you have been imagining.

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 fifteen questions I get asked most often in that lowered voice. Real answers, plain language, no judgment, and every one of them tied to the statute it actually comes from. But first, the question underneath all fifteen of them — the one people ask in the first week, before they know enough to be embarrassed about anything. If yours is not here, call and ask it — 305-224-6811.

What to Do When Someone Dies in Florida: The First Two Weeks

Table of Contents

Short answer: almost nothing on the checklist you have been handed is actually urgent. Four things in a Florida estate have real legal deadlines. Everything else — the accounts, the car, the house, the paperwork, the phone calls people keep telling you to make — can wait, and several of them go better if they do.

People arrive at my office in week two carrying a list of forty tasks, convinced they are already behind on all of them. They are not. The list is mostly invented, and treating it as urgent is how families make the decisions they later have to unwind. So before the questions below, here is the honest triage.

What actually has a deadline, and what does not

The thing you were told to rush	Real deadline?	What is actually true
Deposit the original will with the clerk	YES — 10 days	§ 732.901(1), running from when you learned of the death. This is the one real clock in week one. It is a clerk’s-window errand, not a probate.
Surviving spouse’s elective share	YES	§ 732.2135 — the earlier of six months after service of the notice of administration or two years after death, and the court cannot extend past two years. If there is a surviving spouse, this is the deadline that gets missed.
Claim the $255 Social Security lump sum	YES — 2 years	20 C.F.R. § 404.391. Small enough that people put it off until it lapses.
Claim exempt property	YES	§ 732.402(6) — but the clock starts on service of the notice of administration, so it does not run until a probate is open.
Return post-death Social Security payments	Effectively	Not a deadline you act on — the bank reclaims it, sometimes weeks later. Just do not spend it.
Open the probate	NO. None.	Florida sets no deadline to petition for administration. Not ten days, not a year, not ever. This is the single most common false belief about Florida probate.
Notify creditors	No	The three-month creditor clock in § 733.702 starts on first publication — which you control, and which does not happen until a probate is open.
Transfer the car title	No	Watch the registration expiration, not a legal deadline. See below.
Close accounts, cancel cards, clear out the house	No	And moving fast here is how families create the problems the rest of this page is about.

Read the right-hand column of that table again. Two of the four real deadlines do not even begin to run until a probate is opened, which is something you choose to do. The sense that a clock is running down on you in week one is, for the most part, manufactured.

Who do you actually need to notify when someone dies?

Far fewer people than the internet suggests, and in a specific order.

Social Security usually finds out without you — the funeral home reports the death, and that is the normal route. Confirm the funeral director is doing it rather than assuming, and do not send back the last payment yourself; let the bank handle the reclamation.

The bank will learn of the death from the same reporting chain or from you. Telling them is not a legal obligation and it is not urgent, and it is worth knowing that no Florida statute requires a bank to freeze an account when a customer dies — that is internal policy, and it varies branch to branch.

Life insurance and retirement plan beneficiaries should file their own claims. Those assets pass outside probate to whoever is named, so a beneficiary does not need you, or a personal representative, or a court.

The clerk of court gets the original will within ten days. That one is real.

Nearly everything else — utilities, subscriptions, the DMV, credit bureaus, the passport office — can be handled in the ordinary course over the following months, and several of them are easier once someone actually has legal authority to act.

Order more death certificates than you think you need

This is the one piece of genuinely practical advice worth acting on in the first week, and it is the thing everyone underestimates. Each institution wants its own certified copy and most will not return it. Ten is not excessive for an estate with a house, a couple of accounts and a vehicle. Ordering them one at a time, weeks apart, is the single most common source of avoidable delay in an otherwise simple estate.

Order some with cause of death and some without. Insurers generally want the version showing cause; most banks, title companies and the DMV do not, and handing over the cause-of-death version where it is not needed discloses medical information for no reason.

What not to do in the first two weeks

The rest of this page is, in a sense, a catalogue of what happens when this list gets ignored:

Do not empty the accounts, even for legitimate expenses, until you have read the section below on what that actually exposes you to.
Do not distribute the belongings before the family has talked. Items given by agreement are never a problem; items that quietly disappeared can become one years later.
Do not throw away paperwork — especially anything that looks like a will, a codicil, or a handwritten list of who gets what. That last one is a legal document in Florida under § 732.515.
Do not let the car’s registration lapse while you decide what to do with it.
Do not panic about the mortgage. It survives the death, it is not accelerated by it, and the two-year rule that wipes out unsecured claims does not touch it.

If you have already done one of these, that is what the rest of this page is for. Most of it is fixable, and almost none of it is as bad as you are assuming at 2 a.m.

Can You Drive a Deceased Person’s Car in Florida?

Short answer: yes. No Florida statute makes it a crime to drive a car whose registered owner has died. What you actually have are three separate problems — the registration, the insurance, and civil liability if you crash — and only the first one is obvious.

You would be amazed how many people are driving around Florida quietly convinced they are committing a crime. They are not. The statute people worry about is Florida Statute § 319.34, captioned “Transfer without delivery of certificate; operation or use without certificate; failure to surrender; other violations.” It carries a penalty of not more than $500 or six months, and it reaches operating a vehicle “for which a certificate of title is required without such certificate having been obtained.”

Read that carefully, because it is the whole answer. The statute punishes driving a car for which no title has ever been obtained. Your mother’s car has a certificate of title. It exists. It simply has not been transferred yet, and from the moment of her death the car is an asset of her estate. A car with a valid existing title, still registered and still insured, is not the situation § 319.34 was written for.

So the criminal worry is misplaced. The three real problems are these.

Is the registration still valid after the owner dies?

Yes, until it expires. Death does not void a Florida registration mid-term. The problem arrives at renewal, because you cannot renew a registration on a vehicle you do not own, and Florida’s vehicle registration renewals run on the owner’s birthday. If the decedent’s birthday is three weeks away, you have three weeks. If it was last month, you already have expired tags and a traffic stop is a real risk.

This is the single most common way a “we’ll deal with the car later” decision turns into a citation. Check the sticker before you do anything else.

When a person dies, is their car insurance still valid?

This is where most families get hurt, and it is not a statutory question at all — it is a contract question, answered by the policy language and by the carrier.

The general shape of it: when the named insured dies, most personal auto policies continue to provide coverage for a limited period, but the class of people covered narrows sharply. Typically the policy will cover the surviving spouse and the person with legal responsibility for the vehicle — meaning a personal representative once one is appointed — and it covers them for maintaining and using the car, not for using it as a personal daily driver and not for lending it to somebody else. An adult child who simply keeps driving mom’s car to work, with no appointment and no notice to the carrier, may be outside the coverage entirely and not know it until there is a claim.

Every page on the internet that gives you a confident number here — “coverage continues 30 to 60 days after death” is the one that circulates most — is making it up. There is no Florida statute setting a grace period and no universal policy term. Call the carrier. It is a five-minute call and it is the only way to know.

Who is liable if you crash a deceased person’s car in Florida?

This is the question nobody asks and everybody should, and Florida has a controlling case on exactly this fact pattern.

Florida applies the dangerous instrumentality doctrine, which, as the Florida Supreme Court put it in Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000), imposes vicarious liability on the owner of a motor vehicle who voluntarily entrusts it to someone whose negligent operation causes damage. A car is not like a lawnmower in Florida; ownership carries liability that follows the vehicle.

When the owner dies, the car becomes an estate asset immediately. In Depriest v. Greeson, 213 So. 3d 1022 (Fla. 1st DCA 2017), the court put it memorably: when the decedent died, “in the twinkling of a legal eye,” the car became an asset of his estate.

But — and this is the part that matters to you — the estate is not automatically liable. In Depriest, a decedent’s adult daughter drove his car about a month after his death, before any personal representative had been appointed, and caused a crash. The injured motorist sued the estate. The First District affirmed summary judgment for the estate, because the doctrine requires voluntary entrustment, and the nominated personal representative’s failure to stop her from using the car did not supply the implied consent the claim needed. Imposing that duty, the court reasoned, would create an obligation to act before appointment that the Probate Code deliberately does not impose.

So the honest picture is narrower and less alarming than what circulates online. Ownership alone is not enough. What creates exposure is consent — an appointed personal representative who hands over the keys, or an heir who has taken possession of the car and lets someone else drive it, is in a materially different position from a family that simply has not gotten to the car yet. The driver, of course, remains liable for their own negligence either way.

None of this makes driving the car unlawful. It means the safest sequence is: confirm the tag is current, confirm with the carrier who is covered, carry proof of insurance as Florida Statute § 316.646 requires, and move the title as soon as one of the routes below is available.

How Do You Transfer a Car Title After Death in Florida Without Probate?

Short answer: in most Florida estates you can move a car title without opening a probate at all, using Florida Statute § 319.28, which handles transfer of ownership by operation of law.

The statute runs two different tracks and the difference matters. Where the owner died intestate — without a will — § 319.28(1)(b) says it is not necessary to accompany the application with an order of a probate court if the applicant files an affidavit that the estate is not indebted and that the surviving spouse, if any, and the heirs, if any, have amicably agreed among themselves upon a division of the estate. Where the owner died testate, the application goes in with a certified copy of the will if it was probated, plus an affidavit of solvency, or with a sworn copy of the will if it was not probated, plus an affidavit that the estate is not indebted.

Two details we have never seen another Florida page state correctly. First, the intestate route is written around heirs — “an heir of a previous owner who died intestate.” The statute does not use the word “beneficiary,” and that is not loose drafting. Under Florida Statute § 731.201 an heir is a person entitled to take under the intestacy statutes, while a person who takes under a will is a devisee. So the simple affidavit route is closed to you if there is a will — even an uncontested one that everybody agrees about. Every page telling you “any family member can transfer the title with an affidavit” is wrong whenever a will exists.

Second, § 319.28 itself contains no death-certificate requirement. The Department asks for one as a matter of practice, drawing on the “satisfactory proof” standard in § 319.28(1)(a) and on analogous statutes. Section 320.0609(7) lets a surviving spouse transfer the registration license plate “upon presenting the death certificate” — and, notably, provides that if the spouse does not present one, the department may verify through the Department of Health’s electronic death records instead. The vessel statute, § 328.01(7)(c), works the same way: the primary route is the original title plus a probated will or letters of administration, and a death certificate (with a copy of the will and an heirs’ affidavit) is an alternative the department may accept. Useful to know when you are told a document is legally required and it is really an option the agency finds convenient.

The 2024 change almost nobody has written about

Effective 1 July 2024, chapter 2024-272 added § 319.28(1)(c), and it materially changes the answer for testate estates. Where the previous owner died with a will and the title application is accompanied by an affidavit attested by a Florida-licensed attorney in good standing with The Florida Bar, that affidavit establishes a presumption of ownership and right of possession, so long as it sets out the rightful heir or heirs and the attorney attests that they are lawfully entitled. The statute then says it plainly: “It is not necessary for the application for certificate of title filed under this paragraph to be accompanied by a copy of the will or other testamentary instrument.”

In other words, a Florida attorney’s affidavit can move the title without producing the will at all — no probate, no certified copy, no sworn copy. For a family that cannot find the original will, or does not want to file it, or is stuck because the only asset is a car, this is often the entire solution. It is two years old and most Florida pages on this topic still describe the pre-2024 subsection lettering, which is one way to tell how stale a page is: the old (1)(c) surviving-spouse assignment provision is now § 319.28(1)(d).

There is also a titling arrangement that avoids the question entirely. Under Florida Statute § 319.22(2)(a)1.a, a vehicle registered to two or more people in the alternative — with the word “or” between the names — is held in joint tenancy, and the signature of any one co-owner is proper endorsement, so the survivor can transfer it. Registered in the conjunctive under § 319.22(2)(a)1.b, with “and” between the names, the signature of each co-owner or their personal representative is required. One word on a title decides whether the family has a five-minute errand or a legal problem.

And one correction, because it circulates constantly: Florida has no transfer-on-death titling for motor vehicles or vessels. Chapter 711 is about securities. It is not a deed statute and it is not a vehicle statute.

The forms, the fees, the electronic-title problem, what to do when the paper title is lost, and the sales-tax treatment on a distribution to an heir are all covered in depth here: selling a car in Florida after the owner dies.

Short answer: yes, the payment that arrives the month after the death almost always has to go back — but the one that arrived the month of the death is usually yours to keep. Almost everyone gets this backwards, and almost everyone panics about the wrong payment.

The mechanism is simple once someone explains it. Social Security pays in arrears. The money that arrives in a given month is the benefit for the previous month. And under the federal regulations — 20 C.F.R. § 404.311(b) for retirement benefits and § 404.316(b)(1) for disability — entitlement ends with the month before the month of death.

Put those two rules together and you get the whole answer. A person has to be alive for the entire month to be due that month’s benefit.

If the death is in September	What that payment is for	Keep or return
Payment arriving in September	August benefit — a month lived in full	Keep
Payment arriving in October	September benefit — the month of death	Return
Anything arriving after that	Not due at all	Return

Why doesn’t Social Security pay for the month of death?

Because the regulation says entitlement ends the month before. It does not matter whether the death was on the 1st or the 31st. Someone who dies on 30 September is not due the September benefit, and the family that spends the October deposit is spending money that will be reclaimed. This strikes most people as unfair the first time they hear it, and it is settled federal law either way.

This is the part of the story nobody writes about, and it is the part that actually hurts families.

Under Treasury rules, a financial institution must return direct-deposit payments that arrive after the institution learns of the death. So the bank reverses the deposit, often automatically, often weeks later, and often after the family has used the money for the funeral. If the account has been drawn down in the meantime, the reversal can overdraw it.

Two things are worth knowing here. First, the reversal is not an accusation. It is the bank doing what the Green Book requires, and Social Security’s own operating manual — POMS GN 02408.650 — instructs its employees not to tell people the bank should not have returned a payment, and to avoid implying the institution erred. Second, and more usefully: a payment the beneficiary was actually entitled to is not lost merely because the bank returned it. It becomes an underpayment, and an underpayment is recoverable by the right person — which brings us to the next question.

Short answer: a qualifying surviving spouse, and the estate is dead last. If you have been told “it goes to the estate,” you were told wrong, and it matters, because the two lead to completely different people.

Any benefit that was due and unpaid at death is a Social Security underpayment, and it is claimed on Form SSA-1724, “Claim for Amounts Due in the Case of a Deceased Beneficiary.” The order of payment is fixed by statute and set out in SSA’s operating manual at POMS GN 02301.030:

Order	Who
1	Surviving spouse living in the same household at death, or entitled on the same record for the month of death
2	Children entitled to benefits on the same record for the month of death
3	Parents entitled on the same record for the month of death
4	A surviving spouse who does not qualify under 1
5	Children who do not qualify under 2
6	Parents who do not qualify under 3
7	Legal representative of the deceased’s estate

Where more than one person sits in the highest surviving category, the underpayment is divided equally among them.

Does the estate get the last Social Security payment?

Only if there is no one in categories one through six. In an ordinary Florida estate with a surviving spouse, the spouse takes it and the personal representative never touches it — which means it is not an estate asset, does not go on the inventory, and is not available to the estate’s creditors.

Here is the trap: the Medicare premium refund runs the opposite direction. On a Medicare premium refund the legal representative of the estate comes first, ahead of the spouse and children. The SSA-1724 covers both, the priorities are inverted, and we have never seen another page say so. If you are filing that form for a Florida estate, fill it out with both orders in mind.

Short answer: a surviving spouse who was living in the same household applies, by phone or through Social Security, within two years of the death. The amount is $255, it is a one-time payment, and it has not changed since 1954.

Under 20 C.F.R. § 404.390, a lump-sum death payment of $255 may be paid to the widow or widower of a fully or currently insured decedent if that spouse was living in the same household at the time of death. Section 404.391 adds the filing requirement: the claim must be made within two years after the date of death, though a spouse who was already entitled to wife’s or husband’s benefits in the month before the death need not apply again. Where there is no qualifying widow or widower, § 404.392 directs the payment to persons entitled to widow’s, widower’s, mother’s or father’s benefits for the month of death, and failing that, in equal shares to those entitled to child’s benefits for that month.

Does everyone get the $255 death benefit?

No. It is one of the most misunderstood payments in the system. It does not go to whoever paid for the funeral. It does not go to the funeral home. And it does not go to the estate — the estate does not appear anywhere in the priority chain.

What happens to the $255 if nobody qualifies?

Nothing. It lapses. If there is no surviving spouse who meets the household requirement and no child entitled on the record for the month of death, no lump-sum death payment is made at all. It is not an asset of the estate and there is nothing for a personal representative to collect. This is the answer families spend hours hunting for and it is almost never stated plainly.

One practical note: because two years is a real deadline and $255 is a small enough sum that people put it off, this is the item most often lost entirely. Handle it in the first month or accept that it will probably be forgotten.

What Happens If You Threw Away or Lost the Original Will in Florida?

Short answer: almost certainly nothing was revoked. You have an evidence problem, not a revocation problem, and Florida law has a specific procedure for exactly this. This is one of the most relieving answers I get to give.

Does destroying a will revoke it in Florida?

Only when the testator does it. Under Florida Statute § 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 and for the purpose of revocation.

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, with intent to revoke. So the will was not revoked by what you did. It still exists as a legal instrument.

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

Florida requires strict compliance with § 732.506, not substantial compliance. In In re Estate of Gross, 144 So. 2d 861 (Fla. 3d DCA 1962), a testator in Miami directed someone in Birmingham, Alabama to burn his will. It was burned, exactly as he wanted. The court held the will was not revoked, because the burning did not happen in his presence. If a deliberate destruction ordered by the testator himself fails to revoke a will for want of one statutory element, an accidental one by a grieving family member does not come close.

The presumption you need to know about — and why it probably does not apply to you

There is a complication, and no page that only reassures you is telling you the whole story.

Florida law presumes that when a will last known to be in the testator’s possession cannot be found after death, the testator destroyed it intending to revoke it. The Florida Supreme Court stated it in In re Washington’s Estate, 56 So. 2d 545 (Fla. 1952): the presumption is that the testator destroyed the will with the intention of revoking it, and the burden of proving the contrary is on the person offering the will. It is not a soft inference. It requires competent, substantial evidence to overcome, and where that evidence is missing the court must find the will revoked.

Now read the trigger again, because it is where your situation almost certainly lands: the presumption arises only if the will was in the testator’s possession when last seen. If the drafting attorney kept the original, the presumption never arises at all — that is Schultz v. Estate of Roach, 549 So. 2d 1156 (Fla. 3d DCA 1989). And if it is an established fact that someone other than the testator destroyed the will, the presumption has nothing to operate on; that was the position in Gross, where it was admitted the testator had not destroyed it himself.

Which produces the counterintuitive practical advice on this whole page: if you threw the will away, say so, clearly and early. Every instinct tells you to stay quiet about it. But your own account of what happened is the evidence that keeps the presumption from ever arising. Silence is the thing that hurts you here, because a missing will and no explanation is precisely the fact pattern the presumption was built for.

Two caveats, because that advice is not a magic phrase. Your account is evidence, not proof — the court weighs it against everything else, and an interested person’s convenient recollection carries the weight a court decides to give it. And there is a hard line underneath all of this: accidentally discarding a document is one thing, but deliberately destroying or making off with a will is grand theft of the third degree under § 812.014(2)(c)4, no matter what the paper is worth. Coming forward early is good advice for the person who made a mistake. It is not a way out for the person who did it on purpose.

How do you probate a copy of a will in Florida?

Through Florida Statute § 733.207, which lets any interested person establish the full and precise terms of a lost or destroyed will and offer it for probate. The proof standard is specific: the content must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, by one disinterested witness.

That second clause is why the first thing we ask is whether anyone has a copy — a photocopy, a scan, an emailed PDF from the drafting attorney. A copy cuts the witness requirement in half and changes the whole proceeding. Say so early.

But be precise about what counts. In In re Estate of Parker, 382 So. 2d 652 (Fla. 1980), the Florida Supreme Court held that a “correct copy” means an identical copy, “such as a carbon or photostatic copy.” Those are examples, not the outer limit — the Second District confirmed in Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012), that a copy generated from the same computer file as the original can qualify, reasoning that a computer-generated copy can be indistinguishable from the original and that reading Parker to allow only carbons and photostats would be an anachronism. So the scan and the emailed PDF are very much in play.

What does not qualify is a conformed copy, a substantially similar version, or the attorney’s draft — a draft is exactly what Parker rejected. Families routinely find the draft in a file folder and believe the problem is solved. It is not, and the difference between a draft and a true copy of the signed will is the difference between one disinterested witness and two.

The substance comes from § 733.207; the procedure comes from Florida Probate Rule 5.510. Most pages on this subject cite the statute and stop. The rule is the half that determines whether your petition survives contact with the court, and it has teeth:

Establishment and probate happen in one proceeding, and it is an adversary proceeding
The petition must state the facts constituting the grounds for relief and a statement of the contents of the will, or a copy if one is available
Formal notice — the more rigorous form of service — must go to everyone who would take the property but for the will. In practice that means the intestate heirs, which is to say the people with the strongest reason to oppose you
The testimony of each witness must be reduced to writing and filed, and can be used later if a witness dies or leaves the state. Affidavits submitted in place of testimony, without everyone’s agreement, are not enough
The order admitting the will must state its full terms and provisions

That fourth point is where do-it-yourself petitions die. People assemble sworn statements, file them, and discover that a written affidavit is not the reduced-to-writing testimony the rule contemplates.

Who counts as a disinterested witness?

Someone with no private interest in the matter and no stake in the outcome — the definition the Second District applied in Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012), where both co-personal representatives were disqualified because each stood to gain from whether the lost codicil was established. Read honestly, that means the beneficiaries under the will cannot be the witnesses who prove it. This is the trap families walk into. Three siblings all agree on what the will said, all three are named in it, and none of them can serve as the disinterested witness the statute requires.

Smith v. DeParry also draws a distinction worth holding onto: being an “interested person” under § 731.201 — which is about standing and the right to notice — is not the same as being an interested witness. A personal representative with no financial stake in the outcome can be both entitled to notice and available as a disinterested witness.

One more requirement that trips up otherwise good cases: the witness must know what the will said. In Brennan v. Honsberger, 101 So. 3d 415 (Fla. 5th DCA 2012), the court confirmed that testimony about the will’s execution is not enough — a witness who watched the testator sign but cannot speak to the contents does not satisfy § 733.207. The notary who witnessed the signing is often useless for this purpose, which surprises everyone.

And a related point that surprises people most of all: universal agreement among the heirs does not substitute for the statutory proof. Even where every interested person signs a consent, the court still requires the § 733.207 showing. Consent is not evidence, and a petition built on waivers instead of witness testimony is a petition that fails.

What if the will was electronic?

Florida recognizes electronic wills, and they are ordinarily held by a qualified custodian. That changes what “lost” even means — the question becomes whether the custodian still holds the electronic record and whether the chain of custody is intact, rather than whether a piece of paper is in a drawer. Revocation of an electronic will under § 732.506 requires deleting, canceling, rendering unreadable or obliterating it, proved by clear and convincing evidence.

What if the original turns up after the estate closes?

Move immediately, because this is the one place on this page where the honest answer is unfavorable — and because the calendar, not your diligence, is what decides it.

Before the personal representative is discharged you have two routes: a petition to revoke probate under Florida Statute § 733.109, and relief from the order under Florida Rule of Civil Procedure 1.540(b). After discharge, the first one closes: § 733.109(1) permits an interested person to commence the proceeding only “before final discharge of the personal representative.” What is left is 1.540(b) relief and the fraud-on-the-court exception, and neither is a comfortable place to be standing.

So the practical rule is simple. Everywhere else on this page, delay costs you very little. Here, discharge is a door that shuts.

If a will has surfaced and the estate is closed or closing, that is a same-week phone call, not a next-month one.

How Long Do You Have to File a Will in Florida After Death? The 10-Day Rule

Short answer: ten days from when you learned of the death, under Florida Statute § 732.901 — and if you are already past it, the consequence is far smaller than you think.

The statute requires the custodian of an original will to deposit it with the clerk of the court having venue of the estate within 10 days after receiving information that the testator is dead, supplying the date of death or the last four of the testator’s Social Security number. Note the trigger — it runs from when you received information of the death, not from the death itself.

What happens if you miss the 10-day deadline in Florida?

This is the question every reader has and, as far as we can tell, not one competing Florida page answers it. So here it is, from the statute itself.

For simply being late: there is no criminal charge, no automatic fine, and no forfeiture of your inheritance. What § 732.901(2) provides is this: upon petition and notice, a custodian may be compelled to produce and deposit the will, and “all costs, damages, and a reasonable attorney’s fee shall be adjudged to petitioner against the delinquent custodian” — but only if the court finds the custodian had no just or reasonable cause for failing to deposit it.

The sanction is fee-shifting only, and it is expressly gated on that finding. Being honest about the limits of that: no Florida appellate decision has defined “just or reasonable cause.” It is a fact question for the probate judge. Grief, not knowing the rule existed, and not realizing you were the “custodian” in the first place are the kinds of explanations that read as reasonable cause — but nobody can promise you an outcome on a standard no court has interpreted.

Where people do get hurt is the other pattern: knowing you hold the will, being asked for it, and refusing — usually because you do not like what it says. That is where a court is likely to find no just or reasonable cause, and that is where the fees land on you personally.

Is it a crime to hide or destroy a will in Florida?

Being late is not a crime. Stealing the will is. Under Florida Statute § 812.014(2)(c)4, theft of “a will, codicil, or other testamentary instrument” is grand theft of the third degree — a felony — regardless of what the document is worth. The Legislature singled the instrument out precisely because its value is not monetary.

That is the line. Leaving the will in a drawer for four months because you were grieving sits on one side of it. Taking a will that is not yours, or destroying one to keep it from being probated, sits on the other — and destruction also drops you into the lost-will framework of §§ 732.506 and 733.207 above, where you become the person with an evidence problem.

Can a court make someone hand over the will?

Yes. That is precisely what § 732.901(2) is for. If a family member is sitting on the original, any interested person can petition to compel production, with the fee exposure above attached. Families in this position often assume nothing can be done. Something can be done, quickly.

Where do you deposit the will, and does it cost anything?

With the clerk of the circuit court in the county with venue over the estate. Deposit is a clerk’s-window transaction. It does not open a probate, it does not commit you to serving as personal representative, and it does not commit you to hiring anyone.

Three details from the statute that most summaries drop. You must supply the testator’s date of death or the last four digits of their Social Security number when you deposit — that is the second sentence of § 732.901(1), and turning up without it wastes a trip. An original will submitted along with a petition or other pleading is deemed deposited under § 732.901(3), so if a probate is being opened anyway the filing does double duty. And for this purpose “will” includes a separate writing under § 732.515 — the handwritten list of who gets which ring and which watch. If your mother left one, it goes to the clerk too.

Section 732.901(4) then puts the burden on the clerk: the original must be retained and preserved in its original form for at least 20 years, whether or not the will is ever admitted to probate, and scanning or microfilming it does not discharge that duty.

Two practical habits worth borrowing: send it with a short cover letter identifying the decedent and the date of death, and get proof of delivery.

And order certified copies while you are there, because you will need them and going back is annoying.

Is the 10-day rule a deadline to open probate?

No, and this confusion is actively harming people. At least one Florida firm currently publishes that a probate petition is “generally expected” within ten days of learning of the death. That is wrong. The ten days belong to depositing the original will. There is no Florida deadline to petition for administration at all. If you read that somewhere and have spent weeks believing you blew a deadline, you did not.

Can You Take Money Out of a Deceased Person’s Bank Account to Pay for the Funeral?

Short answer: not properly, no — the account belongs to the estate the moment of death, and the debit card in your wallet is not authority. But there are four legitimate routes to the money, and one of them almost certainly fits.

I understand completely why people do it. It is their money, it is their funeral, and the funeral home wants a deposit before anything happens. Two things are true at once: the account belongs to the estate upon death, not to whoever holds the card, and an expired power of attorney provides no authority, because that authority ended at death.

Does the bank have to freeze the account?

No. No Florida statute requires a bank to freeze an account when a customer dies. Banks do it as internal risk policy, which is why the practice varies bank to bank and branch to branch, and why the answer you get depends heavily on who picks up the phone.

Was it really a joint account?

Before assuming the money is yours because your name was on the account, check what kind of account it actually was. Florida distinguishes a true joint account with right of survivorship from a convenience account — one opened so somebody could help pay the bills, with no intention that they inherit the balance. Convenience-account funds stay in the estate.

How real is the distinction? In Larkins v. Mendez, 363 So. 3d 140 (Fla. 3d DCA 2023), the probate court found an account was a convenience account notwithstanding the survivorship designation on the signature card, based on clear and convincing evidence of the decedent’s contrary intent, and ordered the son to return $314,168.14 he had withdrawn after his father’s death. On appeal the Third District left that determination and the obligation to return the money intact, reversing only a contempt order on separate procedural grounds. The signature card was not the end of the inquiry. If your name went on a parent’s account late in their life, for a practical reason, do not treat the balance as yours until someone has looked at how and why that account was opened.

What are the legal ways to access a deceased person’s account in Florida?

Route	What it does	The limit nobody mentions
§ 735.301 Disposition without administration	A short court filing for very small estates — exempt property plus limited personal property	Real property cannot pass this way at all, and the cap is not a fixed number: it is the sum of preferred funeral expenses plus reasonable and necessary medical and hospital expenses of the last 60 days of the last illness
§ 735.303 Payment to successor without court proceedings	A financial institution may pay a small balance to a statutorily designated family member	$2,000 aggregate (raised from $1,000 by ch. 2026-57 eff. 1 July 2026), and not earlier than six months after death, in fixed priority: surviving spouse, then adult child, then adult descendant, then parent. Six months is useless for a funeral, which is the honest answer nobody gives
§ 735.304	An alternative route where there is no will	Its own waiting period and conditions
Summary administration	Abbreviated court administration	Non-exempt value at or below $150,000, raised from $75,000 by chapter 2026-57 effective 1 July 2026 — or the decedent has been dead more than two years, in which case there is no dollar limit at all

One correction that matters and that competing pages get badly wrong: we have seen Florida-facing pages claim banks will release “$5,000 to $15,000” for funeral expenses. The Florida number is $2,000, it is permissive rather than mandatory, and it is locked behind a six-month wait. Do not plan a funeral around it.

Are funeral expenses paid first in a Florida estate?

Nearly. Under Florida Statute § 733.707, the order of payment puts costs and expenses of administration in Class 1, and reasonable funeral, interment and grave marker expenses in Class 2 — capped at an aggregate of $6,000, whether paid by a guardian, the personal representative, or any other person.

Read that last clause closely, because it is the one that helps you: the priority attaches to the expense no matter who paid it. A family member who fronted the funeral costs has a Class 2 position for reimbursement up to $6,000. Above $6,000, the excess does not vanish — it drops to Class 8, the last class, and gets paid only if there is money left.

This is the mechanism behind the reassurance in the next section. It is why a reasonable funeral payment out of mom’s account is usually forgiven rather than pursued: the estate was going to pay it anyway, at nearly the front of the line.

What Is the Penalty for Taking Money From a Deceased Person’s Account in Florida? (Executor de Son Tort)

Short answer: it depends entirely on what the money paid for. Paying the funeral home out of your mother’s account is a different legal animal from moving your mother’s account into your own. Florida law draws that line precisely, and the difference between the two is the difference between a conversation and a lawsuit.

What is an executor de son tort in Florida?

It is the old name for someone who acts like an executor without being one. Florida Statute § 733.309 says it in a single sentence: no person shall be liable to a creditor of a decedent as executor de son tort, but any person taking, converting, or intermeddling with the property of a decedent shall be liable to the personal representative or curator, when appointed, for the value of all the property so taken or converted and for all damages to the estate caused by the wrongful action.

Two halves, and most summaries only give you the second. The first half is protective: you do not become personally liable to the decedent’s creditors by touching estate property. That fear — that handling mom’s account makes you responsible for her credit cards — is exactly backwards.

The second half is where the exposure lives, and notice what it measures: damages to the estate. Not the fact of the withdrawal. The loss.

Is it stealing if you used the money for the funeral?

Ordinarily, no — and there is a Florida case directly on the point.

In Albritton v. Estate of Albritton, 731 So. 2d 154 (Fla. 1st DCA 1999), a man collected rental income from estate property while “acting ostensibly on behalf of the estate but without authority,” and put it toward the estate’s own financial obligations. The probate court ordered him to repay it. The First District reversed, in language worth quoting: “Because the funds at issue were used to discharge financial obligations of the estate, and not for Mr. Albritton’s personal benefit, we conclude that the estate suffered no loss. Consequently, the order must be reversed.”

That is the whole principle. Section 733.309 measures loss to the estate, not the fact of the withdrawal. If the money went to a Class 2 funeral expense the estate was obligated to pay anyway under § 733.707, the estate has not been deprived of anything — it has had a priority debt satisfied. Making you repay it would leave the estate better off than it should be, and courts do not order that.

Note too that § 733.707(1)(b) gives Class 2 priority to funeral expenses “whether paid by a guardian, the personal representative, or any other person.” The statute openly contemplates that somebody other than the personal representative pays the funeral home and is entitled to credit for it.

The same logic reaches other estate obligations. Paying the decedent’s final utility bill or the mortgage that is keeping the house out of foreclosure is not intermeddling in the sense the statute is worried about; it is preserving the asset. What it does not cover is using estate funds to pay a debt the decedent owed to you — Florida has long denied an intermeddler any set-off for assets applied to their own claim against the decedent. And where families get into real trouble is the opposite pattern entirely: funds moved for personal benefit, or spent in a way that leaves the estate genuinely poorer.

Keep the receipts. The Albritton defense is an evidentiary one, and it works only if you can show where every dollar went.

Three honest limits on that, because this is not a safe harbor and you should not treat it as one. It protects only lawful obligations of the estate that were actually discharged — the money has to have gone where you say it went. The funeral’s Class 2 priority stops at $6,000; above that the expense is a Class 8 claim, and in an insolvent estate it may simply go unpaid. And if the estate cannot pay its higher-priority creditors, or you took more than the obligation actually required, both § 733.309 liability and criminal exposure are back on the table. “I spent it on the funeral” is a strong answer when it is true and documented and proportionate. It is not a formula.

Can you be criminally charged for it?

It is possible, and it is uncommon in the ordinary case — but the exposure is real enough to be worth stating precisely.

Florida Statute § 812.014 makes it theft to knowingly obtain or use the property of another with intent to deprive or to appropriate it to your own use. Estate assets belong to the estate and its beneficiaries, so converting them to personal use can be theft, and the degree tracks the dollar amount: under $100 is second-degree misdemeanor petit theft; $100 to under $750 is first-degree misdemeanor petit theft; $750 or more is grand theft, a third-degree felony; $20,000 or more is a second-degree felony; $100,000 or more is a first-degree felony. A person who empties a five-figure account is in felony territory on the numbers alone. And a civil settlement does not close off the criminal track — the two are independent.

Does the elderly-exploitation statute apply after death?

No, and this is worth knowing because families are often threatened with it. Florida Statute § 825.103 criminalizes exploitation of an elderly person or disabled adult, and § 825.101 defines an elderly person as someone 60 or older suffering the infirmities of aging — plainly a living person. The offense requires depriving that person of the use or benefit of their funds. After death there is no living person to deprive, so § 825.103 does not reach purely post-death withdrawals.

The caveat is important, though: if withdrawals started before the death, while a vulnerable elderly parent was alive, § 825.103 absolutely can reach that conduct — and the civil remedy under § 772.11 carries treble damages and attorney’s fees. The date the transfers began often matters more than the amount.

And be careful about what you read on this. The page currently ranking at the top of Google nationally for this question is written by a California firm, cites a California statute that does not even address theft from a decedent’s account, and attaches a prison exposure figure that has no basis. It is being served to Florida readers. Florida law is what governs your situation, and it looks nothing like that page.

What if you used a power of attorney?

Then the answer is cleaner than most people expect, and it is not the answer you will read elsewhere — including, until we corrected it, on this page.

Florida Statute § 709.2109(1)(a) is unambiguous: a power of attorney terminates when the principal dies. That is true of a durable power of attorney too — “durable” means it survives the principal’s incapacity, not their death. The moment your parent died, the authority ended as a matter of law.

The point that is widely stated wrongly concerns what happens next. Florida Statute § 709.2117 makes an agent “who violates this part” liable to restore the principal’s property. But “this part” is the Florida Power of Attorney Act, which governs agents acting under a live power of attorney. Once the principal has died there is no power of attorney to violate, so § 709.2117 does not reach post-death withdrawals at all. Those are governed by § 733.309, common-law conversion, and § 812.014 — exactly the same rules that apply to a relative who never held a POA in the first place.

The practical consequence cuts both ways. Having held the POA gives you no defense — the card in your wallet conferred nothing after the death. But it also does not put you in a worse position than anyone else, and the analysis returns to the same question as the rest of this section: was the estate made poorer. If the money went to the funeral home, Albritton is your answer whether or not you ever held a power of attorney.

How do you fix it?

Three factors decide how this resolves, and you control all three.

What the money funded. Funeral, mortgage, utilities, last illness — defensible, and usually reimbursable anyway. Personal expenses — not.

Whether you disclosed it. A withdrawal you reported to the family and documented reads as a mistake. The identical withdrawal, discovered nine months later during an accounting, reads as concealment. The money is the same; the case is not.

Whether it stopped. One transaction before you understood the rule is a mistake. A pattern continuing after you knew is something else, and courts treat it that way.

If you are reading this having already done it: write down every transaction, keep every receipt, tell the family in writing, and stop. Then call someone. A person who self-reports with documentation is in a materially different position from a person whose withdrawals surface in a breach of fiduciary duty proceeding. And if you are a personal representative, know that Florida Statute § 733.609 holds you to a trustee’s fiduciary duty and says the court shall award costs and attorney’s fees in an action for breach — not may, shall — satisfiable out of your share of the estate or out of your own pocket.

How Long Do You Have to File Probate in Florida? Is It Ever Too Late?

Short answer: there is no deadline to open a Florida probate, and in one specific way waiting has probably made your situation better rather than worse. This is the single most common thing people are embarrassed about, and it is the one where the embarrassment is least deserved.

Florida has no rule that closes the door on you after a year, or five, or fifteen. There is no statute of limitations on petitioning for administration. Estates get opened decades after a death, routinely, usually because a house needs to be sold and someone finally pulled the title.

Can you file probate five years after death?

Yes. Ten years, too. What changes with time is not whether you can probate but which probate you get — and the change generally runs in your favor.

What is the 2-year rule after death in Florida?

Two separate things happen at the two-year mark, and together they are the reason a long delay often makes an estate cheaper.

First, Florida Statute § 735.201 makes summary administration available where the decedent has been dead for more than two years — and on that route, the dollar threshold does not apply at all. A $900,000 estate that would have required full formal administration in year one can qualify for summary administration in year three. That is a real difference in cost, complexity and time.

Second, Florida Statute § 733.710 provides that two years after death, neither the estate, the personal representative, nor the beneficiaries are liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued. It is an absolute bar, not a filing deadline you can miss. The credit card balances, the medical bills, the old judgment somebody keeps mentioning at Thanksgiving — extinguished.

Two carve-outs to know. Section 733.710(2) preserves a claim by a creditor who did file within two years and whose claim is still unresolved. And § 733.710(3) expressly does not affect the lien of a duly recorded mortgage or security interest, or the right to foreclose it. So the mortgage on the house survives; the unsecured debts do not.

Does waiting make probate cheaper?

Frequently, yes — which is the opposite of what everyone assumes when they call apologizing for the delay. You are not in trouble, and in two specific and measurable ways you may be better positioned than you were the month after the funeral.

The countervailing risks are real and worth naming plainly, because the cheerful version of this answer is incomplete:

Secured debt is untouched. § 733.710(3) preserves recorded mortgages and other liens. Waiting clears unsecured claims; it does nothing to the mortgage.
A surviving spouse loses the elective share entirely. Under § 732.2135 the election must be filed by the earlier of six months after service of the notice of administration or two years after the death, and the court’s power to extend for good cause also stops at two years. This one is permanent, and it is the single strongest reason for a surviving spouse not to wait.
Nobody has authority in the meantime. Until a personal representative is appointed, no one can marshal assets, insure or maintain property properly, or pursue the decedent’s own claims — which run on their own limitations clocks regardless of probate.
The two-year bar does not transfer anything. § 733.710 extinguishes liability. It does not retitle a car, a house or a brokerage account. Somebody still has to go to court.
Homestead sits in limbo. Protected homestead passes to the heirs at death, but nobody can convey clean, insurable title until the court determines homestead status. Two years of an unmarketable and possibly vacant house is a genuine cost.
Assets get harder to locate, witnesses to a lost will get harder to find and their memories get worse, taxes and association assessments keep accruing, and an heir who has died in the interim means a second estate to sort out.

So the fair statement is narrower than “waiting is good.” Waiting shrinks the creditor problem and opens the summary-administration door regardless of value. It is a description of what happens when families delay — not a plan, and not advice for a surviving spouse.

Do You Have to Sell the House in Florida Probate?

Short answer: usually not. The assumption that you do causes an enormous amount of unnecessary grief, and often an unnecessary sale.

Whether the house has to be sold depends on whether it qualifies as Florida homestead — homestead property carries constitutional protection from creditors of the estate and passes under its own set of rules — on whether the estate has debts that cannot be paid another way, and on 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. When that stalemate hardens, the vehicle is a partition action, not a forced probate sale.

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.

One more that saves families money: under Florida Statute § 733.607(1), protected homestead is excepted from the personal representative’s right of possession. The PR does not take control of it the way they take control of the bank accounts. That surprises nearly everyone, including some personal representatives who have been paying the insurance out of the wrong pocket.

Who Gets the Personal Belongings After Death Without a Will in Florida?

Short answer: personal belongings pass under the will, or under Florida’s intestacy statutes if there is no will — but a specific category of household property is set aside as exempt and never reaches the creditors at all.

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

Legally, personal effects are estate assets and get distributed 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.

Can I take my mother’s jewelry before probate?

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: 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. That is the same disclosure principle that governs the money question above, and it works for the same reason.

What is exempt property in a Florida estate?

Under Florida Statute § 732.402, a surviving spouse or, if there is none, the decedent’s children, are entitled to exempt property — protected from all claims against the estate except perfected security interests:

Category	Limit
Household furniture, furnishings and appliances in the decedent’s usual place of abode	Up to $20,000 net value as of the date of death
Motor vehicles held in the decedent’s name and regularly used by the decedent or immediate family	Two, neither over 15,000 lbs GVW
Qualified tuition programs under IRC § 529, including Florida Prepaid	All
Death benefits paid under § 112.1915 (teachers and first responders)	All

Exempt property is not automatic, and this is where families lose it. Section 732.402(6) requires the persons entitled to file a petition for determination of exempt property on or before the later of four months after service of the notice of administration, or forty days after termination of any proceeding involving the construction, admission to probate or validity of the will. Miss that window and the right is waived. Nobody sends a reminder.

One more limit worth knowing: under § 732.402(5), property that the will specifically devises to a named person is not exempt property. If the will leaves the truck to your brother, the truck is a specific devise and it passes as one — it does not also get the exempt-property shield.

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?

Short answer: 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 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, and 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 — the Florida equivalent is the lady bird deed. 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.

Can You File Probate in Florida Without a Lawyer?

Short answer: almost never in a formal or summary administration, because Florida Probate Rule 5.030 requires an attorney unless you are the sole interested person — and “sole interested person” is much narrower than people assume.

The rule reads that every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A personal representative who is themselves a Florida-admitted attorney may represent themselves.

That is the entire exception. Two routes, and no others.

What does “sole interested person” actually mean?

It means exactly what it says, and it fails the moment anyone else has a stake. A beneficiary other than you is an interested person. So, generally, is a creditor. If you are one of three children, you are not the sole interested person, and the exception does not reach you no matter how well the three of you get along.

This is where the internet does the most damage. Pages that tell Florida readers they can “handle a summary administration themselves” are describing a situation that applies to a small minority of estates and presenting it as the general rule.

Is a § 735.301 disposition different?

Yes. Rule 5.030(a) reaches exactly two roles — “every guardian and every personal representative.” A disposition of personal property without administration under § 735.301 appoints nobody: the statute says no administration shall be required and no formal proceedings instituted, and it authorizes an informal application “by affidavit, letter, or otherwise by any interested party.” No letters issue, no fiduciary is appointed, so the rule’s requirement is not engaged on its own terms. Florida circuit courts describe the procedure the same way in their published guidance.

Being straight about the limits of that: no Florida appellate decision has squarely decided it. The conclusion rests on the text of the rule, the text of § 735.301, and how the courts themselves describe the process. Clerks accept these filings pro se routinely — but clerk practice is not law, and people do file them on their own and some of them do it fine.

What we will not do on this page is give you a walkthrough, and that is a deliberate choice. The forms are the easy part. Knowing whether your facts actually fit § 735.301 — whether the property is genuinely all personal, whether the exemptions apply, whether the medical expenses of the last sixty days are what you think they are — is the part that goes wrong, and it goes wrong silently. A defective filing does not bounce back with an error message; it sits there having accomplished nothing while a deadline runs.

What is the real risk of doing it yourself?

Personal liability, and it is not theoretical. Under § 733.609 a personal representative’s fiduciary duty is the same as a trustee’s, and a PR is personally liable to interested persons for damage or loss resulting from breach. In an action for breach the court shall award taxable costs including attorney’s fees, and may enter judgment satisfiable out of your own property rather than out of the estate.

A layperson who distributes to the wrong person, distributes before the creditor period closes, or misses a required notice has created a liability that attaches to them and not to the estate. That is the calculation, and it is worth doing honestly before you save a fee.

What If You Cannot Afford to Open a Probate in Florida?

Short answer: in most Florida estates the fee is paid from the estate’s own assets at the end, not out of your pocket at the beginning — which means “I cannot afford it” is often a misunderstanding of who is paying.

This question comes up constantly and gets answered almost nowhere. The pages that rank for it answer a different question — what probate costs — which is not useful to someone who has already decided they do not have it.

Can the estate pay the lawyer instead of you?

Ordinarily yes, and Florida Statute § 733.6171(1) says it in one sentence: “Except as provided in paragraph (2)(d), attorneys for personal representatives are entitled to reasonable compensation payable from the estate assets without court order.”

Attorney’s fees for administering a Florida estate are an expense of administration — Class 1 under § 733.707, the very front of the payment line. Where the estate has assets, the fee generally comes out of those assets, not out of your savings in the month after a funeral. The person who calls convinced they must produce several thousand dollars up front is frequently wrong about the mechanics of their own case.

Where it does not work that way is the genuinely asset-poor estate — a decedent with a house in foreclosure and nothing liquid, or an estate whose only value is a claim that has to be litigated first. Those need a different conversation, and there are structures for them.

Five things a Florida probate attorney has to tell you in writing

This is the part of the statute nobody publishes, and it is written for your protection. Under § 733.6171(2), an attorney who intends to charge under the statutory fee schedule must disclose in writing to the personal representative, and obtain a signature acknowledging, all of the following:

“There is not a mandatory statutory attorney fee for estate administration.”
The fee “is not required to be based on the size of the estate,” and the presumed reasonable fee in the schedule “may not be appropriate in all estate administrations.”
“The fee is subject to negotiation between the personal representative and the attorney.”
The choice of attorney is the personal representative’s, who is “not required to select the attorney who prepared the will.”
The personal representative is entitled to a summary of ordinary and extraordinary services at the conclusion of the representation.

And § 733.6171(2)(d) supplies the teeth: an attorney who does not make those disclosures “may not be paid for legal services without prior court approval of the fees or the written consent of all interested parties.”

The schedule in § 733.6171(3) is a presumption of reasonableness, not a price list — and under § 733.6171(5) any interested person can petition the court to increase or decrease the compensation, against ten enumerated factors. If someone has told you the fee is fixed by statute and not negotiable, the statute itself says otherwise, and says they were required to tell you so in writing.

How much does probate cost in Florida?

It varies by route, and the route is what drives the number far more than the size of the estate. A disposition without administration is a filing, not a case. A summary administration is a fraction of a formal administration. The cheaper procedures are real procedures, not consolation prizes, and the county filing fees themselves are modest relative to what people imagine.

We take certain cases on contingency and will discuss it case by case; there is no blanket policy, and it depends heavily on what is actually in the estate.

Can the clerk’s filing fee be waived?

There is a procedure, and the honest description of it is deferral, not erasure.

Florida Statute § 57.081(1) provides that an indigent person who is a party in “any judicial or administrative agency proceeding” shall receive the services of the courts and clerks — expressly including filing fees — “despite his or her present inability to pay.” The statute is written by proceeding type and contains no probate carve-out, so it reaches a probate filing by its own breadth.

Section 57.082 is the machinery. The clerk, not the judge, makes the initial determination of civil indigent status on a standard application. The test is whether income is at or below 200 percent of the current federal poverty guidelines. There is a presumption against indigency where the applicant has property with net equity of $2,500 or more — but the statute excludes the value of your homestead and one vehicle worth up to $5,000 from that calculation, which matters enormously here, because the people asking this question are usually asset-poor and house-rich. An applicant found not indigent may ask the court to review, which considers whether paying would create a substantial hardship.

And here is the part that is better than most people are told: the filing fee is waived, not merely postponed. Section 57.082(6) provides that filing fees waived under § 57.081 may not be included in the calculation of the payment plan a clerk sets up. The payment plan reaches other costs and the clerk’s administrative charge; the § 57.081 filing fee is carved out of it.

One practical caveat: clerk guidance rarely names probate specifically, so practice varies by county. Ask, but ask knowing the statute is on your side.

And the answer nobody wants to give you

Sometimes you do not need a probate at all. If everything passed by beneficiary designation, survivorship or trust, there is nothing to administer and nothing to pay for. If the only asset is a car, § 319.28 moves it. If the only asset is a small bank balance, § 735.301 may reach it. A firm that answers “you do not need probate and you do not need me” is giving you the most valuable answer on this page, and it should not cost you anything to hear it.

The Florida Probate Deadlines That Actually Exist

Half the anxiety behind the questions on this page comes from a vague sense that a clock is running. Here is the honest list — the deadlines that are real, and the one that is not.

Deadline	Authority	Runs from
10 days to deposit the original will with the clerk	§ 732.901(1)	Receiving information that the testator died
3 months for creditors to file claims, or 30 days after service for a served creditor — whichever is later	§ 733.702(1)	First publication of the notice to creditors — not the death, not the letters
2 years absolute bar on claims against the decedent	§ 733.710(1)	Date of death
2 years to claim the $255 Social Security lump sum	20 C.F.R. § 404.391	Date of death
Exempt property petition — later of 4 months after service of the notice of administration, or 40 days after any will proceeding ends. Miss it and the right is waived	§ 732.402(6)	Service of the notice of administration
Elective share election — the earlier of 6 months after service of the notice of administration, or 2 years after death. Extendable for good cause, but never past the 2 years	§ 732.2135	Service of the notice, or the date of death
3 months to object to the validity of the will, the venue, or the jurisdiction of the court	§ 733.212	Service of the notice of administration
No deadline whatsoever to petition for administration	—	—

Note the second row carefully, because it is the one most often stated wrongly: the creditor period runs from first publication, not from the date of death and not from the date letters issued. And note the last row, because it is the one people torture themselves over.

What Other Florida Websites Get Wrong About These Questions

We audited the pages currently ranking for each question on this page. Here is what is circulating, and why it is wrong. If you read one of these and have been carrying it around, put it down.

The claim	What Florida law actually says
“You must file for probate within 10 days of learning of the death.”	Conflates two different things. The 10 days in § 732.901 belong to depositing the original will. There is no deadline to petition for administration.
“Banks will release $5,000–$15,000 for funeral expenses.”	Florida’s figure is $2,000 under § 735.303 — itself raised from $1,000 by chapter 2026-57 effective 1 July 2026, so pages saying either $1,000 or “$5,000 to $15,000” are wrong in opposite directions. It is permissive, not mandatory, and unavailable for six months.
“Car insurance continues 30 to 60 days after the owner dies.”	No Florida statute creates a grace period and no universal policy term does either. It is a contract question. Call the carrier.
“The small-estate threshold is $50,000 to $200,000.”	Florida summary administration is $150,000, raised from $75,000 by chapter 2026-57 effective 1 July 2026. Any page still publishing $75,000 is out of date. (Several Florida firms confidently state the threshold turns on the date of death rather than the filing date — the act contains no applicability clause saying so, and we do not repeat the claim.)
“There is a 30 to 60 day waiting period before you can file.”	There is none for summary administration.
“The estate collects the last Social Security payment.”	The estate is last in the underpayment priority. A qualifying surviving spouse takes ahead of it. (The Medicare premium refund is the reverse.)
“The $255 goes to whoever paid for the funeral.”	It does not. It goes to a surviving spouse who lived in the same household, then to certain children. If nobody qualifies, nothing is paid.
“The heir affidavit certifies no debts or that debts will be covered by other assets.”	§ 319.28(1)(b) requires an affidavit that the estate is not indebted. Full stop.
“Florida has a transfer-on-death deed.”	It does not. Chapter 711 is a securities statute. The Florida equivalent for real property is the lady bird deed.
“Minor children block the sale of homestead.”	Article X, § 4(c) requires spousal joinder to alienate. It says nothing about children. The children rule is about devise.
“Any family member can transfer a Florida car title with a death certificate and a simple affidavit.”	Only where the owner died intestate. § 319.28(1)(b) says “an heir of a previous owner who died intestate.” With a will you are on the testate track — or the § 319.28(1)(c) attorney affidavit.
“The registration becomes invalid the moment the owner dies.”	Nothing in chapter 320 terminates a registration at death. It runs to its scheduled expiration — for a natural person, the owner’s birthday under § 320.07(1).
“The estate is automatically liable if someone crashes the decedent’s car.”	Depriest v. Greeson refutes this. The dangerous instrumentality doctrine requires voluntary entrustment; a nominated personal representative’s inaction before appointment does not supply it.
“§ 709.2117 makes you liable for withdrawals you made on the power of attorney after the death.”	It does not reach post-death conduct at all — the power of attorney terminated at death under § 709.2109(1)(a), so there is no Act left to violate. § 733.309 and conversion govern instead.
“The elderly-exploitation statute applies to taking a deceased parent’s money.”	§ 825.103 requires a living elderly person or disabled adult to be deprived. It does not reach purely post-death conduct — though it very much reaches withdrawals that began before the death.
“Exempt property passes automatically to the spouse or children.”	It must be petitioned for under § 732.402(6), within the statutory window, or the right is waived.
“The name on the signature card decides who gets the account.”	Not necessarily. A convenience account can be found to be exactly that despite a survivorship designation — see Larkins v. Mendez, where $314,168.14 had to go back.

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.