Quick Summary
The probate process involves identifying and gathering the assets of a deceased person (a “decedent”) and paying the decedent’s debts. Not all probate assets, however, are subject to creditor claims in probate. Below we will discuss just 4 types of assets that are exempt from the claims of creditors in probate in Florida. Talk with a probate lawyer near you for more clarification.
Probate – Just the Basics
Before we look at the 4 types of assets that do not go through probate in Florida that we want to focus on today, it is important to first get a clear understanding of what probate is and how it works.
Briefly, probate is the court-supervised legal process that a decedent’s estate goes through in order to distribute the decedent’s assets to his/her heirs.
Generally speaking, in Florida, the two main types of probate administrations are formal administration and summary administration depending, among other things, on the value of a decedent’s estate.
Probate assets are property (bank accounts, real estate, etc.) that are titled in the decedent’s sole name at the time of his/her death that don’t have an automatic way of being transferred to the beneficiary.
For example, a bank account in the sole name of the decedent without a designated beneficiary will need to go through probate. Real estate titled in your sole name, or real estate held by two or more people as “tenants in common” without survivorship rights, will also need to go through probate.
Probate is required to transfer these types of assets to a decedent’s beneficiaries. If the decedent had a valid Last Will and Testament (“Will”), the probate court can transfer the assets according to the decedent’s Will. If the decedent did not have a Will, then the probate court will follow Florida’s intestacy laws to determine who gets what.
Probate, which is not avoided just because the decedent has a valid Will, takes some time to complete (several months to a year generally) and can be quite costly. If the decedent died without a Will, or if there are issues regarding whether the Will was valid (in whole or in part), then the probate process can become extremely time‑consuming and expensive and can potentially drag on for years.
Thus, avoiding the expensive and time‑consuming probate process that can deplete a decedent’s estate is one of the aims of estate planning and probate lawyers.
Exempt Property vs. Non‑Probate Assets—Why the Label Matters
“Exempt property” is a defined term in Florida law. It refers to assets that pass through probate but receive special protection from creditor claims against the estate under Florida Constitution Article X, § 4 and Florida Statute § 732.402.
By contrast, non‑probate assets (such as a properly titled joint bank account) never enter the probate case in the first place—they change hands automatically because of the way they are titled or because someone is already named as beneficiary. (Alper Law, Findlaw)
Keeping the two ideas straight helps families avoid surprises when settling an estate.
What are Exempt Assets?
Under Florida law, when the decedent is a Florida resident, the surviving spouse (or, if there is no surviving spouse, the child(ren) of the decedent) is entitled to receive exempt assets before any creditor’s claims are paid.
Florida has two sources of law that provide for exemptions: the Florida Constitution, and statutory exemptions. The two sources of exemptions complement each other in addition to providing some protection for the surviving spouse or children from the claims of creditors.
4 Types of Assets that are Exempt from Creditor Claims in Florida Probate
- Homestead property
Probably the most significant exemption from creditor claims is the constitutional protection afforded to a “homestead.” In Florida, a homestead (the decedent’s primary residence) is exempt from creditor’s claims against the estate. However, there are some exceptions. Homestead is still subject to a mortgage or lien on the property, property taxes and assessments, and mechanic’s or contractor’s liens for improvements.
Be advised that homestead is a very complicated area of law. You should always consult with an experienced probate lawyer as questions frequently arise concerning any number of issues ranging from whether a homestead can be sold, or whether it is still considered to be a decedent’s “homestead” if the decedent moved into an assisted living facility shortly before death. - Household furnishings
As an additional protection for the decedent’s family (i.e., surviving spouse and children), Florida’s statutory laws exempt household furniture, furnishings, and appliances from creditor’s claims—up to $20,000 in net value at the time of the decedent’s death. - Motor vehicles
Similarly, the law protects automobiles (now defined as “motor vehicles”) from creditors’ claims. Only two vehicles qualify, and each must have a gross vehicle weight of 15,000 lbs or less (Florida House of Representatives). - College tuition
Florida’s statutory exemption for prepaid college board programs was expanded to now include “all qualified tuition programs” that are authorized by specific sections of the Internal Revenue Code for purposes of being exempt from creditor claims against an estate.
Statutory caps at a glance
| Item | Statute | Limit |
| Household goods | § 732.402(2)(a) | $20,000 fair‑market value |
| Motor vehicles | § 732.402(2)(b) | Up to 2 vehicles, each ≤ 15,000 lbs GVW (Florida House of Representatives) |
| Tuition programs | § 732.402(2)(c) | All 529 or Florida Pre‑Paid contracts |
Assets That Bypass Probate Entirely
These items never become probate assets because ownership transfers automatically at death:
| Asset Type | How It Transfers | One Thing to Watch |
| Joint property with rights of survivorship | The surviving co‑owner instantly owns 100 % (Alper Law, Walker Flick) | The deed/account must say “rights of survivorship” (not “tenants in common”). |
| POD/TOD & beneficiary‑designated accounts (bank, brokerage, IRA, 401(k), life insurance) | The bank or insurer pays the named beneficiary directly (Jurado Law Firm) | Keep beneficiary forms current after marriages, divorces, or births. |
| Assets in a revocable living trust | The successor trustee distributes the assets to the beneficiaries under the trust terms | The trust must be funded with the assets—title actually moved into the trust. |
How to Claim Florida’s Exempt Property – Step by Step
- File a “Petition for Determination of Exempt Property.”
Deadline: the later of 4 months after service of the Notice of Administration or 40 days after the end of any will contest (§ 732.402(6)) (Circuit 8). - List each exempt item (furniture valuations, vehicle VINs, 529 contract numbers).
- Serve notice of the petition on interested parties.
- The probate judge signs an order determining those assets as exempt property for purposes of creditor claims.
Miss the deadline? Then the right to exempt property is deemed waived, and creditors can pursue those assets like any other part of the estate.
Probate Costs and Time—Reality Check
- Court filing fee: $345–$400 (varies by county).
- Attorney fee guideline: Up to 3 % of the first $1 million in estate value per Florida statutes.
- Typical timeline: 6–12 months for an uncontested estate; longer if someone challenges the will.
By contrast, accessing a payable‑on‑death savings account can take a single claim form and about a week (Jurado Law Firm).
Fast Answers
Does a joint bank account automatically pass outside of probate in Florida?
Yes—if it’s titled “joint with rights of survivorship,” the surviving owner inherits outside probate. (Jurado Law Firm)
How many cars are exempt, and does weight matter?
Up to two personal‑use vehicles, each under 15,000 lbs gross weight, are creditor‑protected. (Florida House of Representatives)
What happens if I miss the 4‑month petition deadline?
The household goods, cars, and tuition accounts lose exempt status and can become subject to creditor claims. (Circuit 8)
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Talk to Our Probate Attorneys
Our team here at SJF Law Group works hard to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. Our probate and estate lawyers expertly guide individuals and families through the complex probate process and capably handle all aspects of the creation, administration, and settlement of estates and trusts.
Serving clients across Plantation, Fort Lauderdale, Boca Raton, West Palm Beach, and Miami—as well as virtual appointments statewide—we’re ready when you are. Call 954‑231‑3430 or send us a message.