What Assets Are Exempt from Probate in Florida?

In Florida, many assets pass directly to heirs without going through the probate process. Assets held in a revocable living trust, assets with named beneficiaries (life insurance, retirement accounts, payable-on-death bank accounts, and transfer-on-death investment accounts), property owned jointly with the right of survivorship, and certain protected assets under Florida law all transfer at death by operation of law or contract — without a court order.

This matters because Florida probate takes time and costs money. When assets pass outside the probate estate, the family deals directly with the financial institution, the insurance company, or the trustee — not a circuit court clerk. For families managing a recent loss, understanding which assets require court involvement and which do not shapes every practical decision in the weeks that follow. This page explains each category, identifies the common traps that pull an otherwise exempt asset into probate, and outlines the steps Floridians can take to structure their estates so more passes directly to the people they intend to benefit.

Written by Alexis Bucelo Diaz, Esq., LL.M., founding attorney of Bucelo Diaz Law, PLLC. Alexis holds a Master of Laws (LL.M.) in Estate Planning from the University of Miami School of Law and has more than 15 years of focused experience in Florida probate and estate planning. Florida Bar #86918. Last reviewed: 2026-05-11.

What Does “Exempt from Probate” Mean in Florida?

Probate is the court-supervised process for identifying, managing, and distributing a deceased person’s assets under Florida Statutes Chapter 733. When an asset is described as “exempt from probate” or “non-probate,” ownership transfers automatically at death — by operation of law, by contract, or through a trust — without requiring the circuit court to issue an order. The personal representative of the estate has no authority over these assets, they do not appear in the probate inventory, and they are not subject to the probate creditor claim process established under F.S. 733.702.

One important distinction: “passes outside probate” does not mean “immune from all claims.” Some non-probate assets, particularly retirement accounts and life insurance proceeds, may still be reachable by certain creditors under specific circumstances. And while Florida’s homestead laws provide strong constitutional protections, those protections have defined limits — especially when a Medicaid lien is involved. This page describes the general rules; the application to any specific estate requires legal analysis of the actual facts.

Assets That Pass Outside Probate in Florida

Florida law recognizes several categories of assets that transfer automatically at death without probate court involvement. Each operates through a different legal mechanism.

Jointly Owned Property with Right of Survivorship (JTWROS)

When two or more people own property as joint tenants with the right of survivorship, the surviving owner automatically receives the deceased owner’s share at death. No probate proceeding is required. The key word is “expressly.” Under F.S. 689.15, Florida does not presume a right of survivorship in real property. A deed conveying property to two people creates a tenancy in common by default. For the right of survivorship to apply, the deed or transfer instrument must state it explicitly. This is a frequent source of confusion: a couple who purchased a home together without specifying JTWROS in the deed may find that the deceased spouse’s interest does not pass automatically and instead must go through probate.

For bank and investment accounts, F.S. 655.79 creates a presumption that joint deposits vest in surviving account holders at death, unless the account agreement provides otherwise.

Tenancy in common is not the same. A tenancy-in-common interest does not pass outside probate. If the decedent owned a 50% interest in property as a tenant in common, that 50% interest is a probate asset that must be administered through the estate.

Tenancy by the Entireties

Tenancy by the entireties is a form of co-ownership available only to married couples in Florida. When one spouse dies, the other automatically becomes the sole owner of the entire property. Unlike standard JTWROS, tenancy by the entireties also provides creditor protection during the couple’s joint lifetimes: creditors of one spouse alone generally cannot reach property held as tenancy by the entireties.

For real property, tenancy by the entireties must be expressly created and both spouses must acquire the property at the same time with the same interest. For bank accounts, F.S. 655.79 provides that a deposit account held in the names of two people who are married is presumed to be a tenancy by the entireties unless the account agreement states otherwise.

Florida Homestead Property

Florida’s homestead protections are among the strongest in the country, grounded in both the Florida Constitution, Article X, Section 4 and F.S. 732.401. Homestead property is subject to special descent rules that limit who can receive it and how.

The most common scenario: when the decedent leaves a surviving spouse and no minor children, the surviving spouse receives a life estate in the homestead automatically, with a vested remainder to the decedent’s descendants. Alternatively, the surviving spouse may elect within six months of death to take an undivided one-half interest as a tenant in common rather than the life estate. This election must be filed in the county property records and is irrevocable once made.

When the homestead is held as tenancy by the entireties between spouses, it passes outside probate entirely to the surviving spouse at death. When it is held as JTWROS, the same result follows.

The rules are more complex when the decedent has a surviving spouse and minor children at the same time, or when the homestead was held in the decedent’s name alone. Do not assume homestead will transfer automatically without reviewing how title is held and who survives. An attorney should review these situations before any decisions are made about the property.

Assets with Named Beneficiaries

Beneficiary designations are the single largest category of non-probate transfers by dollar volume. Each sub-type works through a different legal mechanism but produces the same result: the asset passes directly to the named beneficiary without court involvement.

Life insurance proceeds. When the policy designates a named beneficiary other than “the estate,” the proceeds pay directly to that beneficiary at death. Under F.S. 222.13, life insurance proceeds payable to a named beneficiary are also exempt from the claims of the insured’s creditors. If the estate is named as beneficiary, the proceeds become a probate asset subject to creditor claims.

Retirement accounts. IRAs, 401(k)s, 403(b)s, and similar plans with a named living beneficiary pass directly to that beneficiary outside probate. F.S. 222.21 provides broad protection for these accounts: money or other assets in a qualifying retirement plan or IRA are exempt from execution, attachment, garnishment, and legal process in Florida, and that protection survives a direct transfer to an inherited IRA after the account holder’s death. If no beneficiary is named, or if the named beneficiary predeceased the account holder and no contingent beneficiary is listed, the account may become part of the probate estate.

Annuities. Annuity contracts with a named beneficiary pass outside probate. Under F.S. 222.14, the proceeds of Florida annuity contracts are exempt from attachment, garnishment, and legal process in favor of creditors, with a narrow exception where the contract was created specifically for the benefit of that creditor.

Payable-on-death (POD) bank accounts. Under F.S. 655.82, a bank account with a POD designation transfers to the named payee at the death of the last surviving party on the account. The named beneficiary has no right to the funds during the account holder’s lifetime — the designation takes effect only at death. A POD account is not a probate asset.

Transfer-on-death (TOD) investment accounts. Brokerage and investment accounts with a TOD registration transfer automatically at death to the named beneficiary. Florida follows the Uniform TOD Security Registration Act, codified at F.S. 711.50 et seq. The registration must be completed with the financial institution during the account holder’s lifetime; listing a beneficiary only in a will does not create a TOD registration.

Planning note on beneficiary designations. Beneficiary designations override a will. An outdated designation — one that names a former spouse, a deceased parent, or no one at all — can pull an otherwise non-probate asset into the probate estate, or deliver it to the wrong person regardless of what the will says. In practice, the most common reason an estate ends up larger in probate than the family expected is an outdated beneficiary designation: a retirement account still showing a former spouse, or a parent who was named decades ago and predeceased the account holder. Reviewing these designations is one of the first things we walk clients through in an estate planning consultation.

Assets Held in a Revocable Living Trust

A revocable living trust in Florida holds assets during the grantor’s lifetime and distributes them to beneficiaries at the grantor’s death according to the trust’s terms, without any court involvement. The trust itself is not a probate asset. Assets titled in the trust’s name — real estate, investment accounts, bank accounts — pass under the trust document rather than through the probate estate.

The operative phrase is “properly titled.” An asset that is not actually transferred into the trust during the grantor’s lifetime does not receive the protection of the trust. A trust document that lists an asset but where the title was never changed accomplishes nothing for that asset at death. This is why estate planning attorneys frequently use a pour-over will alongside a revocable trust: the will serves as a safety net that directs any remaining untitled assets into the trust through the probate process. The pour-over will probate is typically a smaller proceeding, but it is still probate. The trust is the primary planning vehicle; the pour-over will is the backup.

Personal Property Exemptions Under F.S. 732.402

This category requires a careful distinction. Under F.S. 732.402, the surviving spouse (or, if there is no surviving spouse, the decedent’s children) is entitled to receive certain personal property free from the claims of most creditors. The exemption covers:

• Household furniture, furnishings, and appliances in the decedent’s primary residence, up to a net value of $20,000;
• Two motor vehicles, each with a gross vehicle weight not exceeding 15,000 pounds, that were held in the decedent’s name and regularly used by the decedent or immediate family members;
• Qualified tuition programs (prepaid tuition plans and 529 accounts) designated with a beneficiary.

These items are protected from creditor claims — but they are not non-probate assets in the same sense as a life insurance policy with a named beneficiary. They still pass through the summary administration or formal administration process, and a petition must be filed within four months of the notice to creditors to claim these exemptions. The distinction matters: a surviving spouse who assumes the household furniture will “automatically” stay out of the estate without any court filing may be mistaken. The exemption exists within the probate process, not outside it.

Family Allowance Under F.S. 732.403

F.S. 732.403 entitles the surviving spouse and lineal heirs whom the decedent was obligated to support to a reasonable family allowance payable before most creditor claims are satisfied. The total allowance may not exceed $18,000 and may be paid as a lump sum or in periodic installments. Like the personal property exemption, the family allowance is not a mechanism for bypassing probate; it operates within the probate proceeding as a priority payment that reduces the effective burden on the surviving family.

Pension and IRA Protections

Florida’s creditor exemption for retirement accounts under F.S. 222.21 applies to a broad range of qualified plans: traditional IRAs, Roth IRAs, 401(k) plans, 403(b) plans, 403(a) plans, and other accounts maintained under the relevant sections of the Internal Revenue Code. The exemption covers the plan assets from execution, attachment, garnishment, and legal process in Florida — both during the account holder’s lifetime and when funds are transferred to an inherited IRA at the account holder’s death.

Combine this with the beneficiary designation rules: a retirement account with a named living beneficiary passes outside probate and carries the creditor exemption with it. A retirement account with no named beneficiary (or where the named beneficiary predeceased the account holder) may pass through the probate estate and lose the creditor protection in the process.

What Is NOT Exempt from Probate in Florida

Understanding which assets require probate is as important as knowing which ones do not. These are the categories that most commonly create unexpected probate proceedings for Florida families:

Assets titled in the decedent’s name alone. Real property, bank accounts, and investment accounts held solely in the decedent’s name, without a TOD or POD designation and without a named beneficiary, are probate assets. If the deed says only “John Smith” with no co-owner and no transfer mechanism, the property must go through probate for title to pass to anyone else.

Tenancy-in-common interests. A decedent’s fractional interest in property held as tenants in common does not pass to the co-owners automatically. It passes through the decedent’s estate under the will or intestate succession. This surprises many co-owners who assumed they would automatically receive the deceased co-owner’s share.

Lapsed or absent beneficiary designations. When the named beneficiary on a life insurance policy, retirement account, or annuity has predeceased the account holder and no contingent beneficiary is named, the asset typically falls into the probate estate. The same result follows if the policy or account designated “my estate” as the beneficiary.

Personal property without a title document or designation. Jewelry, artwork, collectibles, and similar items of value pass through the estate under the will or by intestate succession. There is no mechanism for a private beneficiary designation on untitled personal property outside of a trust or will.

Business interests not held in trust. A membership interest in a Florida LLC, shares in a closely held corporation, or a partnership interest held in the decedent’s individual name is a probate asset unless the operating agreement, shareholder agreement, or buy-sell agreement provides for an automatic transfer or buyout at death. Without such a provision, the business interest must be administered through the estate before it can be transferred to an heir or business partner.

These are common planning gaps that a structured estate plan addresses directly. The goal is not to alarm — it is to identify which assets would go through probate today so that a plan can change that before death makes the question academic.

How Florida Probate Law Treats Estates with a Mix of Probate and Non-Probate Assets

The personal representative of a Florida estate inventories only the probate assets — those titled in the decedent’s name alone, without a bypass mechanism. Non-probate assets are not included in the probate inventory or the final accounting filed with the circuit court. Beneficiaries of non-probate assets deal directly with the financial institution, life insurance company, or trustee, and can typically complete those transfers while the probate proceeding is still ongoing.

This matters for determining which type of probate applies. F.S. 735.201 makes Florida summary administration available when the value of the estate subject to administration — not the total value of all assets the decedent owned — does not exceed $75,000 (net of exempt property). A family with a total estate of $800,000 might qualify for summary administration if most of that value passes through a revocable trust and beneficiary designations, leaving only $60,000 in the probate estate. Summary administration is faster and less expensive than formal administration, so the structure of the estate directly affects the cost and timeline of the proceeding.

For a county-by-county breakdown of what Florida probate costs under each administration type, see the Florida probate costs guide. For a detailed look at the timeline, see our page on how long a Florida probate estate stays open.

Planning to Keep Assets Outside Probate in Florida

For Floridians who want to minimize what passes through probate, the following steps address the most common gaps:

1. Review and update beneficiary designations. Check every retirement account, life insurance policy, annuity, and investment account. Confirm the primary beneficiary is still the intended person and that a contingent beneficiary is named in case the primary predeceases you. Repeat this review after any major life event: marriage, divorce, the birth of a child, or the death of a named beneficiary.
2. Consider a revocable living trust for real estate and investment assets. A revocable living trust in Florida is the most flexible tool for keeping titled assets out of probate while retaining full control during your lifetime. It also allows for incapacity planning in a way that beneficiary designations alone cannot.
3. Review how real property is titled. JTWROS or tenancy by the entireties between spouses passes outside probate. A tenancy in common does not. If the deed does not expressly state the right of survivorship, it may need to be re-titled.
4. Add POD designations to bank accounts. Most banks offer POD designations at no cost, on a form at the branch or through online banking. This is one of the simplest steps available and removes the account from the probate estate entirely.
5. Understand the homestead rules before assuming they apply as you expect. Florida’s homestead descent rules are protective, but they are also complex. The rules change depending on whether a surviving spouse survives, whether minor children are involved, and how title is held. Do not plan around a homestead assumption without having an attorney confirm how Florida law will treat that specific property.

A Florida estate planning attorney can review your current asset structure, identify which assets would be subject to probate if you died today, and recommend the changes that would accomplish your goals at the lowest cost and complexity. Bucelo Diaz Law offers a free 30-minute initial consultation to walk through your specific situation. We serve clients in Weston, Ocala, Naples, and across Florida by Zoom.

Frequently Asked Questions About Florida Probate Exemptions

FREQUENTLY ASKED QUESTIONS

Common Questions About Assets Exempt from Probate in Florida