30 Second Summary
- The key point is this: “exempt from probate” and “not a probate asset” are often used together, but they do not always mean the same thing.In Florida, some assets avoid probate because they transfer automatically to another person, while other assets may still be part of the probate discussion but are protected as exempt property.
- Protected Florida homestead property
- Property owned jointly with rights of survivorship
- Bank or investment accounts with payable-on-death or transfer-on-death beneficiaries
- Life insurance, retirement accounts, and annuities with named beneficiaries
- Assets properly funded into a trust
- Certain Florida exempt property, including household furnishings, two qualifying vehicles, qualified tuition programs, and certain protected benefits
Questions? Talk With A Licensed Probate Attorney
The exempt property rules discussed on this page come from Florida Statute 732.402. Homestead descent is governed separately by Florida Statute 732.401. Assets that avoid probate entirely — beneficiary designations, survivorship titling and funded trusts — are a different question from exempt property, and both are covered below.
Exempt Property vs. Non-Probate Assets
Exempt Property
- Exempt property is different. In Florida probate, certain property may be protected for a surviving spouse or children and excluded from most creditor claims.
This matters because:
- The asset may be protected from unsecured estate creditors
- The asset may be excluded from certain estate value calculations
- The surviving spouse or children may need to file the correct request with the probate court
- The asset may still require legal handling even if it is protected
Non-Probate Assets
- Non-probate assets usually transfer outside of probate because ownership passes automatically by law, title, contract, or beneficiary designation.
Common examples include:
- Jointly owned property with rights of survivorship
- Payable-on-death bank accounts
- Transfer-on-death investment accounts
- Life insurance with a named beneficiary
- Retirement accounts with named beneficiaries
- Assets titled in a properly funded trust
Florida Assets That Usually Avoid Probate
Jointly Owned Property With Rights of Survivorship
Property may avoid probate if it is owned jointly with a clear right of survivorship.
Examples include:
- Real estate titled as joint tenants with rights of survivorship
- Property owned by spouses as tenants by the entirety
- Joint bank accounts with survivorship language
If survivorship language is missing, the asset may still need probate.
Bank and Investment Accounts With Beneficiaries
Bank accounts and investment accounts may avoid probate when they have valid beneficiary designations.
Examples include:
- Payable-on-death bank accounts
- Transfer-on-death brokerage accounts
- Accounts with a surviving joint owner
If the account is only in the deceased person’s name and has no beneficiary, probate is usually required.
Life Insurance, Retirement Accounts, and Annuities
Life insurance, retirement accounts, and annuities generally avoid probate when a living beneficiary is properly named.
Examples include:
- Life insurance payable to a spouse, child, trust, or other named beneficiary
- IRA accounts with named beneficiaries
- 401(k) accounts with named beneficiaries
- Annuities payable to a named beneficiary
These assets may become probate assets if:
- The estate is named as beneficiary
- No beneficiary is listed
- The listed beneficiary died first
- The beneficiary designation is invalid or outdated
Assets Held in a Properly Funded Trust
A trust can help avoid probate, but only if the assets were actually transferred into the trust.
Examples include:
- Real estate deeded into the trust
- Bank accounts titled in the trust’s name
- Investment accounts transferred to the trust
- Business interests assigned to the trust
NOTE: A trust document alone does not avoid probate if the assets were never properly funded into the trust.
For more on trusts, see our article: Florida Living Trust Attorney.
Florida Exempt Property in Probate
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Florida law gives certain surviving family members rights to exempt property.
Exempt property may generally be claimed by:
- The surviving spouse
- The decedent’s children, if there is no surviving spouse
This protection applies when the deceased person was domiciled in Florida at the time of death.
What Is Florida Statute 732.402?
Florida Statute 732.402 is the exempt property statute. It gives the surviving spouse — or, if there is no surviving spouse, the children — the right to take certain property out of the estate ahead of creditors. Property that qualifies is exempt from all claims against the estate except perfected security interests on that property, which means a secured lender keeps its lien but an ordinary creditor does not reach it.
Four categories qualify under § 732.402, and each has its own limit:
| Category under § 732.402 | Limit |
|---|---|
| Household furniture, furnishings and appliances in the decedent’s usual place of abode | Up to $20,000 net value at the date of death |
| Motor vehicles held in the decedent’s name and regularly used by the decedent or immediate family | Up to two, each under 15,000 pounds gross vehicle weight |
| Qualified tuition programs under s. 529 of the Internal Revenue Code, including Florida Prepaid contracts | No dollar cap in the statute |
| Benefits paid under s. 112.1915 | No dollar cap in the statute |
Two limits people miss. Property that the will specifically devised to someone is excluded from exempt property unless that devisee petitions the court for it, so a specific gift and an exempt property claim do not stack. And the right is not automatic — it has to be claimed by petition within the deadline set out below.
Household Furniture, Furnishings, and Appliances
Florida exempt property includes household furniture, furnishings, and appliances in the deceased person’s usual home, up to a net value of $20,000.
Examples may include:
- Furniture
- Appliances
- Household goods
- Basic furnishings used in the home
What furnishings protection does not reach: a collection. Cards, coins, watches, comics and similar items are not household furniture, furnishings or appliances, so they fall outside this exemption and remain available to the estate’s creditors. How Florida probate treats a collection, from the safe deposit box to the inventory valuation.
Two Personal Motor Vehicles
Florida exempt property may also include up to two qualifying motor vehicles.
To qualify, the vehicles generally must:
- Have been held in the decedent’s name
- Have been regularly used by the decedent or immediate family
- Not exceed 15,000 pounds in gross vehicle weight per vehicle
Qualified Tuition Programs
Certain qualified tuition programs may also be exempt property.
Examples may include:
- Florida Prepaid College plans
- Florida 529 savings plans
- Other qualifying tuition programs under federal law
Certain Protected Benefits
Florida exempt property also includes certain protected benefits paid under Florida law, including certain benefits connected to school employees and administrators.
Deadline to Claim Exempt Property
Exempt property rights can be waived if the correct petition is not filed on time. This is one of the biggest reasons families should not wait too long to ask questions after probate begins.
The petition generally must be filed by the later of:
- Four months after service of the notice of administration
- Forty days after the end of certain proceedings affecting the estate or will
Florida Statute 732.402: Quick Answers
Who can claim exempt property under Florida Statute 732.402?
The surviving spouse claims it. If there is no surviving spouse, the decedent’s children take the exempt property instead. The right belongs to those people specifically — it does not extend to every beneficiary of the estate, and it is not something the personal representative can waive on their behalf.
What is the deadline to claim exempt property in Florida?
The petition must be filed on or before the later of two dates: four months after the date the notice of administration was served, or forty days after the termination of any proceeding involving the construction, admission to probate, or validity of the will. Miss both and the exemption is lost, which is why this is one of the first things to calendar when an estate opens.
Does exempt property come out before the gifts made in the will?
Generally yes. Exempt property is set aside ahead of creditors and ahead of the ordinary distribution of the estate. The exception is property the will specifically devised to a named person — that is excluded from exempt property unless the devisee petitions the court to have it treated as exempt.
Is a car exempt from probate in Florida?
Up to two vehicles can be exempt property under § 732.402, provided each was held in the decedent’s name, was regularly used by the decedent or immediate family, and does not exceed 15,000 pounds gross vehicle weight. A third vehicle, a boat, a trailer or a collector car that was not in regular family use falls outside the exemption and stays in the estate.
Is homestead the same as exempt property in Florida?
No. They are two separate protections that often apply to the same family. Exempt property under § 732.402 covers furnishings, vehicles and tuition programs. Homestead is constitutional protection for the residence itself, and it descends under its own statute, § 732.401, rather than under the exempt property rules.
Florida Homestead Property Has Its Own Rules
Florida homestead is one of the most important probate-related asset categories.
Homestead property may be protected from many creditor claims and may pass differently from other estate assets. However, it is not always as simple as saying “the house never goes through probate.”
Florida homestead can become complicated when:
- The deceased person was married
- The deceased person had minor children
- The home was titled only in the deceased person’s name
- The family wants to sell or refinance the property
- There is disagreement over who inherits the home
- There are mortgage, lien, tax, or title issues
In many cases, families still need a court order determining homestead status so title can be cleared and the property can be transferred, sold, or handled properly.
Is homestead property exempt from probate in Florida?
Not in the way most people mean it. Homestead is protected, which is a different thing from being outside probate. Florida homestead passing to a surviving spouse or heirs is shielded from the claims of the estate’s creditors, and it descends under its own statute, section 732.401 — but the court still normally has to enter an order determining that the property qualifies as protected homestead. That order is a probate filing. So the honest answer to is homestead property exempt from probate in Florida is that it is exempt from creditors, not exempt from the process.
The governing statute is § 732.401. Where the decedent is survived by a spouse and by lineal descendants, the homestead passes to the surviving spouse as a life estate, with a vested remainder to the descendants per stirpes. The surviving spouse may instead elect an undivided one-half interest as a tenant in common, with the other half going to the descendants. That election has a hard deadline: it must be made within six months after the death and during the spouse’s lifetime, by recording a notice of election in the county where the property is located. If there is no surviving spouse, the homestead descends in the same manner as other intestate property.
Assets That Usually Still Go Through Probate in Florida
Some assets usually require probate because there is no automatic transfer mechanism.
Bank accounts in the deceased person’s name only
Investment accounts with no beneficiary
Real estate titled only in the deceased person’s name, unless protected homestead rules apply
Real estate owned as tenants in common
Vehicles that do not qualify for simplified transfer or exempt treatment
Personal property with significant value
Business interests owned individually
Life insurance or retirement accounts payable to the estate
Assets with no living or valid beneficiary
How Exempt and Non-Probate Assets Affect Creditors
Exempt and non-probate assets can reduce what is available to probate creditors, but the details matter.
Important points:
- Exempt property is generally protected from estate claims, except certain secured interests
- Homestead property may receive strong creditor protection, but title and family-right issues can still require court involvement
- Non-probate assets may pass directly to beneficiaries, but exceptions can apply in some estate and trust situations
- Secured debts, mortgages, liens, and other perfected interests do not simply disappear
For a deeper explanation of estate debt, see: What Happens to Your Debt When You Die in Florida?
When You Should Speak With a Florida Probate Attorney
- A loved one died owning property in their name only
- You are unsure whether an asset is probate or non-probate
- The estate includes a Florida homestead
- The deceased person had a spouse or minor children
- A bank, title company, or financial institution refuses to release an asset
- Beneficiary designations are missing, outdated, or disputed
- A creditor is making a claim against the estate
- Family members disagree over who owns or inherits an asset
- You need to file a petition for exempt property
- You are close to a probate deadline
If an asset dispute has already started, see: Florida Probate Litigation Attorney
Frequently Asked Questions About Assets Exempt From Probate in Florida
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What assets are exempt from probate in Florida?
Assets that may avoid probate or receive special protection include Florida homestead property, jointly owned property with survivorship rights, accounts with named beneficiaries, life insurance, retirement accounts, trust assets, and Florida exempt property such as certain household furnishings, qualifying vehicles, tuition programs, and protected benefits.
What is the difference between exempt property and non-probate property?
Non-probate property usually transfers outside of probate automatically. Exempt property refers to certain protected property that may be claimed by a surviving spouse or children and protected from most estate creditor claims.
Does a will avoid probate in Florida?
No. A will does not avoid probate by itself. A will controls how probate assets should be distributed, but the probate court may still need to validate the will and authorize the transfer of assets.
Does a house go through probate in Florida?
It depends. A Florida homestead may receive special protection, but the family may still need a court order to confirm homestead status or clear title. Real estate titled only in the deceased person’s name may require probate unless another transfer mechanism applies.
Do bank accounts go through probate in Florida?
A bank account may avoid probate if it has a valid payable-on-death beneficiary or surviving joint owner. A bank account in the deceased person’s name only, with no beneficiary, usually requires probate.
Does life insurance go through probate in Florida?
Life insurance usually avoids probate if it names a living beneficiary. If the estate is named as beneficiary, or if there is no valid beneficiary, the proceeds may become probate assets.
Do retirement accounts go through probate in Florida?
Retirement accounts usually avoid probate when they have valid named beneficiaries. If no beneficiary is listed, or if the estate is named, probate may be required.
Do cars go through probate in Florida?
Some vehicles may qualify as exempt property or may be transferred through simplified procedures, but not every vehicle automatically avoids probate. The title, value, number of vehicles, and family use all matter.
Are exempt assets protected from creditors?
Florida exempt property is generally protected from estate creditor claims, except for certain secured or perfected interests. Homestead and other non-probate assets may also have creditor protections, but the rules depend on the asset and the claim.
Can a trust avoid probate in Florida?
Yes, but only for assets properly transferred into the trust. An unfunded trust does not avoid probate for assets still titled in the deceased person’s individual name.
What happens if a beneficiary died before the account owner?
If a named beneficiary died first and no backup beneficiary is listed, the asset may become payable to the estate and require probate. The account documents control the result.
Can an estate be handled without formal probate?
Sometimes. Smaller or simpler estates may qualify for summary administration or another limited probate procedure. That is different from saying probate is never required.
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For more on the broader process, see: Florida Probate Process
