What Families Need to Know After a Death in Florida

Florida has some of the most distinctive estate laws in the country — from its unusually strict homestead rules that restrict who can inherit the family home, to its formal probate requirements and residency rules for personal representatives. This guide covers the six areas where Florida law most affects what families need to do after a death.

Probate
Probate & Small Estates in Florida

Florida probate is filed in the Circuit Court of the county where the deceased lived. Florida is one of the more formal probate states — even relatively modest estates often require attorney involvement, and non-family non-residents cannot serve as personal representatives at all.

Florida offers two simplified tracks for smaller estates. Disposition Without Administration is available when the only estate assets are exempt property and the total costs of the last illness, funeral expenses, and medical expenses do not exceed $6,000. This is a very narrow category but avoids court entirely. Summary Administration is available when the total estate value subject to administration is $75,000 or less, or when two or more years have passed since the date of death regardless of estate size. Summary administration is faster and less expensive than formal administration.

Formal administration is required for all other estates. Florida requires publication of a Notice to Creditors, which starts a 3-month creditor period from the date of first publication. A separate written notice must also go to reasonably ascertainable creditors within 30 days. These timelines cannot be shortened.

One important Florida rule: the personal representative must either be a Florida resident or a close family member (spouse, adult child, parent, or sibling of the deceased). A non-family member who lives out of state cannot serve as personal representative under Florida law — even if named in the will.

Wills
Will Signing Requirements in Florida

A valid Florida will requires the signature of the testator plus two witnesses who must sign in the presence of the testator and in the presence of each other. This mutual-presence requirement is strictly enforced. Notarization is not required for a valid will, but a self-proving affidavit (notarized) speeds up probate by eliminating the need to locate witnesses later.

Florida is one of the states that does not recognize holographic wills — an unwitnessed handwritten will is not valid in Florida. This is a meaningful distinction from many other states, including Texas and California. If someone drafted a handwritten document purporting to be a will without witnesses, it will not be admitted to probate in Florida.

Only the original will can be admitted to Florida probate. If the original cannot be located, Florida law creates a rebuttable presumption that it was destroyed with the intent to revoke it. Overcoming this presumption is difficult and typically requires clear and convincing evidence.

Advance Directive
Advance Directives in Florida

Florida offers two main advance directive documents, which can be executed separately or combined in a single document.

The Designation of Health Care Surrogate names a person to make healthcare decisions when the patient cannot. To be valid, it must be signed by the principal and two witnesses. One witness cannot be the patient's spouse or a blood relative. No notary is required.

The Living Will states the patient's wishes regarding life-prolonging procedures. It requires the same two-witness signing requirement. Both documents are widely accepted by Florida hospitals, hospice facilities, and care providers.

For patients who do not want resuscitation outside a hospital, Florida uses a separate DNRO (Do Not Resuscitate Order) — a bright-yellow physician-signed form that must be immediately accessible to emergency responders.

If no advance directive exists and the patient becomes incapacitated, Florida has a statutory priority list for surrogate decision-making: spouse, then adult child, then parent, then sibling, then other close adult relative. This list governs who may make decisions absent a formal designation.

Homestead
Florida Homestead Rules at Death

Florida homestead law is among the most protective — and most complex — in the country. Understanding how the homestead passes at death is critical, because the rules override what the will says.

The core restriction: if the deceased had a surviving spouse or minor children, the homestead cannot be freely devised to anyone else by will. The law controls who receives it, not the will.

If there is a surviving spouse, the surviving spouse receives a life estate in the homestead, with the remainder passing to the deceased's lineal descendants. The surviving spouse can elect instead to take an undivided one-half interest as tenant in common (giving them an ownership share they can sell or pass on), but this election must be made within 6 months of the date of death.

If there is no surviving spouse but there are minor children, the homestead cannot be devised away from those children at all — regardless of what the will says.

The homestead is also exempt from forced sale by creditors — both during the owner's life and after death — with limited exceptions for purchase money mortgages, taxes, and HOA liens. This means creditors of the estate generally cannot reach the homestead to satisfy debts.

Important practical note: the homestead designation does not automatically transfer title. Even when the rules are clear about who receives the property, the title must still be transferred through the proper legal procedure — either through probate or a separate court petition.

Vehicle Transfer
Transferring a Vehicle After Death in Florida

For vehicles in estates that are not going through probate, heirs can use Form HSMV 82040 (Affidavit of Heirship) to transfer title. This form is available at any Florida DMV or county Tax Collector office. It is used when the estate falls below the threshold or is otherwise not being administered through the court.

If the estate is going through formal or summary probate, the personal representative uses Letters of Administration (or Letters of Administration for Summary Administration) to transfer title through the Florida Highway Safety and Motor Vehicles office.

For vehicles held in joint ownership with right of survivorship, the surviving owner simply presents the death certificate to the FLHSMV — title passes automatically without any affidavit or court order.

Vehicles held in a living trust transfer to the successor trustee without court involvement, using the trust documents and death certificate.

Medicaid Recovery
Medicaid Estate Recovery in Florida

Florida's Medicaid Estate Recovery Program recovers long-term care costs from estates of recipients who were age 55 or older when they received those services.

Florida uses an expanded estate definition: the state can recover from assets the deceased had an interest in at the time of death, including certain life estates created on or after July 1, 2005. This goes beyond the standard probate estate.

Recovery is waived when any of the following apply: a surviving spouse is living, a child under age 21 is living, or a blind or disabled child of any age is living.

Florida generally does not recover from standard revocable living trusts — assets that properly pass outside the expanded estate definition are not subject to a Florida MERP claim. This is a meaningful distinction from Texas, where expanded recovery can reach certain trust assets.

After a Medicaid recipient's death, heirs should contact the Florida Agency for Health Care Administration (AHCA) to notify them and determine whether any recovery claim will be filed against the estate.

Intestacy
What Happens Without a Will in Florida

If someone dies in Florida without a valid will, the estate passes under Florida's intestate succession laws (Florida Statutes §§732.101–732.111). These rules give priority to the surviving spouse and blood relatives. Unmarried partners, long-term companions, and stepchildren who were never formally adopted receive nothing regardless of the nature of the relationship.

Florida's intestacy distribution depends primarily on whether there is a surviving spouse and whether all descendants are also descendants of that spouse:

• Surviving spouse + descendants who are all also the spouse's descendants: Everything passes to the surviving spouse.
• Surviving spouse + descendants, but at least one descendant is not the spouse's child: Surviving spouse receives one-half; the deceased's descendants share the remaining half per stirpes.
• Surviving spouse, no descendants: Everything passes to the surviving spouse.
• No surviving spouse, descendants surviving: Everything passes to descendants per stirpes.
• No surviving spouse, no descendants: Estate passes to parents equally; if one parent predeceased, all to the surviving parent. If no parents survive, to siblings and their descendants.

Florida does not recognize common-law marriages formed within the state. Adopted children are treated identically to biological children under intestacy. A surviving stepchild who was never legally adopted does not inherit. If you are an heir in an intestate estate, you will typically need Letters of Administration from the Circuit Court before you can manage or distribute any estate assets.

Elective Share
The Elective Share: Surviving Spouse Rights

Florida law gives a surviving spouse the right to elect against the will and claim a minimum inheritance regardless of what the will provides. Under Florida Statutes §732.2065, the elective share equals 30% of the elective estate — an augmented calculation that includes both probate assets and certain assets transferred during the deceased's lifetime, preventing a spouse from being disinherited through lifetime transfers.

This right matters most when a will leaves the surviving spouse little or nothing — for example, when a person with children from a prior marriage leaves all assets to those children. The surviving spouse can reject the will's terms and instead take the 30%.

The election must be made within the later of two deadlines: six months after the date of service of the Notice of Administration on the surviving spouse, or two years after the date of death. Once either deadline passes without an election, the right is waived.

The elective share right can also be waived in advance by a valid prenuptial or postnuptial agreement. If the surviving spouse's share under the will already equals or exceeds 30% of the elective estate, there is no additional amount to claim. If you believe the elective share may apply in your situation, contact a Florida estate attorney promptly — once probate is formally opened, the deadline begins running.

Real Estate
Avoiding Probate on Real Estate: Lady Bird Deeds

Florida does not have a statutory Transfer-on-Death deed for real estate, unlike more than 30 states that have adopted the Uniform Real Property Transfer on Death Act. For Florida homeowners who want real property to pass outside probate, the two main options are a Lady Bird deed (also called an Enhanced Life Estate Deed) or a revocable living trust.

A Lady Bird deed works as follows: the property owner (grantor) conveys the property to one or more named beneficiaries but retains the unconditional right to sell, mortgage, lease, or otherwise control the property during their lifetime — including the right to revoke the deed entirely by recording a new one. At death, the property passes automatically to the named beneficiaries without probate, without a court order, and without any action required from the beneficiaries during the grantor's lifetime.

This is a meaningful improvement over a standard life estate deed. With a conventional life estate, the grantor cannot sell or refinance without the consent of the remainder beneficiaries. A Lady Bird deed preserves full control.

Lady Bird Deeds and Medicaid Recovery

Lady Bird deeds carry a significant Medicaid planning advantage in Florida. Because the grantor retains full ownership and control during their lifetime, Florida's Medicaid Estate Recovery Program (MERP) generally cannot recover from a Lady Bird deed. The property passes outside the expanded estate for recovery purposes, making the Lady Bird deed one of Florida's most effective tools for protecting the family home from Medicaid recovery claims while still avoiding probate.

Lady Bird deeds are not created by a specific Florida statute but are well-established through Florida court decisions and are accepted by virtually all Florida title companies. An estate attorney can draft one for a flat fee typically ranging from $150 to $400. The deed must be recorded in the county where the property is located to be effective.