What Assets Are Exempt from Probate in Florida? | Guide from a Florida Probate Attorney

When someone dies in Florida, not all of their property goes through probate. In fact, understanding what assets are exempt from probate in Florida can help families avoid unnecessary court delays, legal fees, and stress. In this guide, our experienced Florida probate attorney breaks down the key categories of non-probate assets and offers a practical roadmap for Florida estate planning. Whether you’re an heir, executor, or concerned property owner, this resource is designed to make Florida probate law easier to navigate.

What Is Probate and Why Does It Matter?

Probate is the court-supervised process for identifying, collecting, and distributing a deceased person’s property. Under Florida probate law, the probate process includes validating the will (if one exists), paying debts, and transferring remaining estate assets to the rightful heirs or beneficiaries.

However, not every asset is subject to this process. Knowing the difference between probate vs. non-probate assets is key to avoiding complications.

Exempt Property Under Florida Probate Law

When a loved one passes away, the probate process can be complex, stressful, and expensive—especially for surviving family members. However, Florida probate law includes specific protections that allow certain assets to pass to the surviving spouse or children without being subject to creditor claims or distribution under the decedent’s will. These assets are known as exempt property, and they play a critical role in understanding what assets are exempt from probate in Florida.

This post explores Florida Statute 732.402, which defines exempt property, how to claim it, and why having an experienced Florida probate attorney is essential in preserving your legal rights during the administration process.

What Is Exempt Property Under Florida Statute 732.402?

Under Florida probate law, exempt property refers to a specific category of estate assets that are excluded from creditor claims (except for perfected security interests) and do not count against the estate when calculating the distribution to heirs, pretermitted spouses, or elective shares.

Florida Statute § 732.402 grants the surviving spouse—or, if none, the decedent’s children—the right to claim exempt property, which is treated as separate from the estate’s general assets. This is one of the clearest answers to the question: what assets are exempt from probate in Florida?

What Specific Assets Qualify as Exempt Property?

According to Fla. Stat. § 732.402(2), the following categories of property qualify as exempt:

1. Household Furnishings and Appliances

The surviving spouse or children may retain household furniture, furnishings, and appliances located in the decedent’s usual residence, up to a net value of $20,000 as of the date of death.

These items are not part of the probate estate when properly claimed.
They are also exempt from creditors under Florida probate law.

2. Two Personal Motor Vehicles

Two vehicles held in the decedent’s name that were regularly used by the decedent or immediate family and do not exceed 15,000 pounds gross vehicle weight are considered exempt property.

This includes standard family-use cars or SUVs.
These vehicles are not considered part of the probate estate for distribution or debt payment purposes.

3. Qualified Tuition Programs

All college savings plans under Section 529 of the Internal Revenue Code are exempt. This includes:

Florida Prepaid College Plans under § 1009.98
Florida College Savings Plans under § 1009.981

These accounts are protected and pass directly to the intended beneficiaries, helping families preserve educational funding.

4. Benefits Under § 112.1915

This section refers to death benefits paid to certain first responders, such as firefighters or law enforcement officers. These payments are exempt when provided to the surviving family.

Legal Advantages of Claiming Exempt Property

Claiming exempt property offers multiple advantages:

Creditor protection: These assets are not subject to unsecured creditor claims.
Preservation of wealth: They are in addition to the homestead exemption, other statutory entitlements, and assets passed by will or intestate succession.
Estate valuation: Assets deemed exempt are excluded from the total estate value before calculating any residuary or elective shares.

This exclusion matters when calculating spousal elective shares, especially in high-value estates.

Limitations and Procedural Requirements

Not every asset can be treated as exempt property. Here’s what to know:

Specifically devised assets: If the decedent’s will specifically gives an item (e.g., a car or piece of furniture) to someone, it may not be eligible as exempt property unless a proper court determination is requested.
Deadlines matter: If you’re entitled to exempt property, you must file a petition within:
- 4 months of receiving the notice of administration, or
- 40 days after the conclusion of any will contest or other related legal matter.

Failure to file on time is treated as a waiver of your right to exempt property.

Exempt Property Is Just One Part of the Florida Probate Puzzle

While understanding what assets are exempt from probate in Florida is important, it’s just one part of managing an estate. Other non-probate assets Florida may also bypass probate, such as Payable-on-death accounts, joint tenancy property, Florida trust assets, and life insurance with designated beneficiaries. These distinctions are critical in drafting a sound Florida estate planning strategy.

Florida Homestead Descent: What You Need to Know About Exempt Property

When a Florida resident passes away owning a homestead property, the question often arises: what assets are exempt from probate in Florida? The family home—if it qualifies as homestead under Article X, Section 4 of the Florida Constitution—receives special treatment under Florida probate law. Understanding how homestead property descends is essential for surviving spouses and descendants, especially because it is considered exempt property.

In this guide, a seasoned Florida probate attorney explains the key provisions of Fla. Stat. § 732.401, which governs the descent of Florida homestead, the options available to surviving spouses, and how to preserve exempt property rights.

The Basics: What Is Florida Homestead?

Florida’s homestead laws offer some of the most protective provisions in the country. A decedent’s primary residence—if it meets statutory and constitutional criteria—qualifies as homestead, which means:

It is exempt from most creditor claims
It passes outside of probate, depending on the circumstances
It receives constitutional protection from forced sale

So, when asking what assets are exempt from probate in Florida, homestead property is often at the top of the list—though it must be properly handled under the law.

Homestead Descent Under Florida Probate Law (Fla. Stat. § 732.401)

When a homestead is not devised by will in accordance with Florida law, the descent of the property is governed by Florida Statute 732.401.

If the Decedent Is Survived by a Spouse and Descendants

The surviving spouse receives a life estate in the homestead.
The decedent’s descendants receive the vested remainder, per stirpes.

This means the spouse can reside in the property for life, and when the spouse dies, full ownership transfers to the decedent’s children or grandchildren.

Optional Election: One-Half Tenant in Common Interest

Under § 732.401(2), the surviving spouse can choose not to accept a life estate and instead take a one-half undivided interest as a tenant in common, with the other half vesting in the descendants.

This election offers greater flexibility—especially if the surviving spouse wants the freedom to sell or encumber their interest.

How and When the Election Must Be Made

To exercise this option, the surviving spouse must file a notice of election with the county clerk within six months of the decedent’s death.

Key Requirements:

The election must be recorded in the official records of the county.
It must include the legal description of the homestead.
If filed by an attorney-in-fact or guardian, court approval is required.
The election, once filed, is irrevocable.

Failing to file within the statutory deadline results in the default life estate taking effect.

This statutory option is vital to understanding Florida probate law and how it protects spouses’ interests in homestead property.

Homestead as Exempt Property: Why It Matters

Florida homestead is more than just real estate—it is exempt property. That means:

It cannot be used to pay most estate debts.
It is excluded from the probate estate valuation.
It is protected under Florida probate exemptions.

From an estate planning perspective, knowing that real estate and probate Florida law excludes properly qualified homestead property from the probate estate can save surviving families time, money, and stress.

Non-Probate Assets in Florida: What Skips the Probate Court

1. Payable-on-Death (POD) Accounts

These include bank accounts and certificates of deposit that have named beneficiaries. When the account holder passes, the funds transfer directly to the designated beneficiary—outside of probate.

Example: A checking account with a POD designation to a spouse or child.
Related term: Payable-on-death accounts Florida

2. Transfer-on-Death (TOD) Securities and Investment Accounts

Much like POD accounts, Transfer-on-death assets Florida refer to brokerage and investment accounts with TOD designations. The named beneficiary can claim the asset without court involvement.

3. Joint Tenancy with Right of Survivorship

Property held in joint tenancy with right of survivorship Florida automatically transfers to the surviving owner upon death. This often applies to real estate, bank accounts, or vehicles.

Caution: Title must clearly state “with right of survivorship.”

4. Tenancy by the Entirety

This is a form of joint ownership exclusive to married couples in Florida. If one spouse dies, the surviving spouse automatically inherits the entire property.

Most often applies to real estate and jointly held bank accounts.

5. Florida Homestead Property

One of the most powerful Florida probate exemptions is the Florida homestead exemption probate. A primary residence in Florida that meets certain criteria is exempt from probate and protected from most creditors.

Must be the decedent’s primary residence.
Automatically passes to a surviving spouse or minor child.
Governed by Article X, Section 4 of the Florida Constitution.

6. Life Insurance with Named Beneficiaries

If a life insurance policy has a designated beneficiary other than the estate, it is considered a non-probate asset.

Related term: Life insurance probate Florida
Tip: If the estate is the beneficiary, the proceeds must go through probate.

7. Retirement Accounts

Accounts like IRAs and 401(k)s typically pass directly to named beneficiaries.

Related term: Retirement accounts probate Florida
Just like life insurance, avoid naming the estate as the beneficiary.

8. Revocable Living Trusts

Assets titled in the name of a revocable living trust Florida are not part of the probate estate.

Related term: Florida trust assets
Benefits: Privacy, speed, and easier administration.

Why It Matters: Benefits of Avoiding Probate in Florida

Avoiding probate saves time, reduces legal costs, and protects your family’s privacy. Many Floridians intentionally structure their estates to maximize Florida probate exemptions and keep key estate assets Florida outside of court.

Speed: Non-probate assets transfer immediately.
Privacy: Probate court records are public; non-probate transfers are not.
Cost: Avoiding probate minimizes court fees and attorney costs.

Florida Probate Checklist: What Still Goes Through Probate?

Despite all the exemptions, many assets still require probate. Here’s what generally must pass through the Florida probate court:

Solely owned real estate not held in a trust or with survivorship rights
Bank accounts without POD or joint ownership
Personal property like vehicles or jewelry without designated transfer
Business interests held solely by the decedent

Understanding these differences helps when building a strong Florida estate planning strategy.

Tips from a Florida Probate Attorney: How to Maximize Exemptions

An experienced Florida probate attorney can help you build an estate plan that shields your assets from unnecessary probate.

Use beneficiary designations Florida across financial accounts
Title property using survivorship or tenancy by the entirety where appropriate
Establish a revocable living trust Florida to hold real estate and high-value personal property
Document non-probate assets Florida in your will or estate plan
Regularly update all beneficiary forms and account titles

Real Estate and Probate in Florida: Special Considerations

Real estate and probate Florida is a hot topic due to homestead laws and various ownership structures. If your property is not homestead and is solely in your name, probate will be required unless it’s in a trust or titled with survivorship rights.

Homestead property may be protected but still needs a court to determine its status.
Investment properties should be reviewed with your estate attorney.

Common Mistakes That Trigger Unnecessary Probate

Even with good intentions, small errors can land assets in probate.

Naming the estate as a life insurance or IRA beneficiary
Leaving outdated beneficiary forms
Failing to retitle property after marriage or divorce
Not using POD or TOD options on accounts

Avoiding Probate in Florida: Proactive Strategies

If your goal is avoiding probate in Florida, here are key steps:

Consult a Florida probate attorney to review your asset structure
Execute a comprehensive Florida estate planning strategy
Leverage trusts, POD, and TOD designations
Keep digital and physical records of account titles and deeds
Update your plan regularly, especially after life events

Conclusion: What Assets Are Exempt from Probate in Florida?

Navigating the Florida probate process can feel overwhelming, especially during a time of grief. Fortunately, Florida law provides a variety of protections that allow certain assets to pass directly to heirs without getting tangled in court proceedings. If you’re asking what assets are exempt from probate in Florida, the answer includes far more than just life insurance policies or POD accounts. Understanding the full scope of Florida probate law can help families preserve assets, reduce expenses, and avoid unnecessary stress.

So, What Assets Are Exempt from Probate in Florida?

Let’s break it down. These non-probate assets Florida are generally considered exempt from probate when properly structured:

Payable-on-death (POD) and Transfer-on-death (TOD) accounts: These include checking, savings, and investment accounts that pass directly to a named beneficiary.
Jointly owned property with right of survivorship: Common among spouses and family members, this ensures the asset passes immediately to the surviving owner.
Tenancy by the entirety property: A special form of joint ownership reserved for married couples in Florida, providing automatic transfer to the surviving spouse.
Florida homestead property: Protected under the Florida Constitution and governed by Fla. Stat. § 732.401, the homestead is exempt from probate and most creditors. It either descends by intestacy (life estate to spouse, remainder to descendants) or, if elected, transfers as a 50/50 tenancy in common between the surviving spouse and descendants.
Life insurance and retirement accounts with named beneficiaries: These pass outside of probate so long as the estate is not the beneficiary.
Revocable living trusts and other trust-owned assets: Assets titled in the name of a properly funded trust are shielded from probate.
Exempt property under Fla. Stat. § 732.402: This includes up to $20,000 in household furniture and appliances, two personal-use vehicles, 529 college savings plans, and qualifying death benefits under § 112.1915.

Each of these categories represents a strategic opportunity to structure an estate plan that avoids the costly, public, and time-consuming process of probate.

Florida Homestead: A Powerful Exemption with Specific Rules

The Florida homestead exemption probate provision is one of the most misunderstood but powerful tools in Florida probate law. Under Fla. Stat. § 732.401, a homestead that is not properly devised will pass to the surviving spouse as a life estate, with a vested remainder in the decedent’s descendants. Alternatively, the surviving spouse may file a formal election to take a one-half undivided interest as a tenant in common.

That election must be made within six months of the decedent’s death, and it is irrevocable once recorded. If the spouse fails to elect, the default life estate applies.

Because the homestead is protected from most creditor claims and passes outside the probate estate, it is rightly considered a cornerstone when determining what assets are exempt from probate in Florida.

Exempt Property Under Florida Statute § 732.402: Immediate Family Protections

In addition to homestead protections, Florida probate law offers statutory exempt property for surviving spouses and children under Fla. Stat. § 732.402. These are assets that are set aside from the estate’s creditors and distribution to ensure that the immediate family is not left destitute.

The exempt categories include:

Furniture, furnishings, and appliances up to $20,000
Two motor vehicles under 15,000 lbs. each used regularly by the decedent or family
Florida Prepaid College Plans and other Section 529 accounts
Death benefits under § 112.1915 for qualifying first responders

This property must be claimed formally within specific deadlines, or the right to it is considered waived. When properly claimed, exempt property is not counted in the estate’s value for purposes of elective share, intestate distribution, or creditor satisfaction.

The Bigger Picture: Structuring an Estate to Avoid Probate

While many assets may qualify as exempt, the truth is that most people do not fully utilize the available tools in Florida probate law without professional guidance. That’s where a Florida probate attorney becomes essential.

An attorney can:

Ensure all beneficiary designations are valid and current
Draft and fund revocable living trusts
Prepare and record a valid homestead election
File petitions to claim exempt property
Prevent costly mistakes that force otherwise exempt property into probate

With the right legal strategy, your family can benefit from a streamlined transition of assets while minimizing exposure to legal costs, court delays, and creditor claims.

Final Thoughts: Get Clarity, Not Surprises

Knowing what assets are exempt from probate in Florida empowers you to protect your loved ones from unnecessary complications after your death. But don’t leave it to chance. Mistitling property, failing to update designations, or missing key filing deadlines can result in avoidable probate proceedings—even for exempt property.

The smarter path? Talk to a Florida probate attorney who can evaluate your estate plan, identify all non-probate assets Florida available to you, and implement legal protections in line with Florida probate law.

If you’re managing a loved one’s estate or building your own, now is the time to ensure their home, vehicles, retirement accounts, insurance proceeds, and family possessions are not just valued—but protected.

Contact a Florida Probate Attorney

Probate doesn’t have to be a legal maze. Our team can help you navigate the Florida probate process, determine your exposure, and implement strategies that align with current Florida probate law. Whether you’re planning ahead or handling a loved one’s estate, we’re here to protect your interests every step of the way.

Have questions about what assets are exempt from probate in Florida or how to protect your family’s estate? Speak with a knowledgeable Florida probate attorney who understands the intricacies of Florida probate law and can guide you every step of the way.

Let us help you safeguard your rights and avoid costly probate mistakes—contact our firm today.