What Is Probate?
Probate is the court process for legally transferring a deceased person’s property to their beneficiaries. Whether it’s required for a given estate isn’t about whether there’s a will — it’s about how each individual asset is titled and owned.
When Is Probate Required?
Probate becomes necessary when an asset doesn’t have an automatic way of reaching its intended beneficiary. Put the other way: probate isn’t needed when an asset already passes automatically through some other mechanism — a joint owner, a named beneficiary, or a trust.
A Will Doesn’t Keep You Out of Probate
This is one of the most common misunderstandings: having a will does not avoid probate. A will actually controls the probate process — it directs what happens during probate, but it has no effect at all on assets that don’t require probate in the first place.
Probate and Real Estate
How real estate is titled determines whether it needs probate:
- Tenants by the entirety (married couples) — passes automatically to the surviving spouse, no probate
- Joint tenants with rights of survivorship — passes automatically to the surviving co-owner, no probate
- Tenants in common — the deceased owner’s share requires probate
- Individual ownership — requires probate
Probate and Bank Accounts
Whether a bank account needs probate depends on ownership and beneficiary designation:
- Joint accounts — pass automatically to the surviving owner, no probate
- Individual accounts with a named beneficiary — pass directly to that person, no probate
- Individual accounts with no named beneficiary — require probate
Real Examples
| Scenario | Outcome |
|---|---|
| Joint checking account with a child | No probate |
| Individual savings account, no beneficiary named | Probate required |
| Individual savings account, beneficiary named | No probate |
| Home owned jointly as a married couple (tenants by the entirety) | No probate |
| Vacation home owned with a sibling as joint tenants with rights of survivorship | No probate |
| Same vacation home owned as tenants in common instead | Probate required for the deceased owner’s share |
| Home owned solely by one spouse (not jointly titled) | Probate required — even though the couple is married |
The one thing people get wrong most — a home owned solely by one spouse, not jointly titled, still requires probate even though the couple is married. Being married doesn’t retitle an asset by itself.
Frequently Asked Questions
Q: Do I need probate if there’s a will?
Yes, possibly — having a will doesn’t avoid probate. The will controls what happens during probate; it has no bearing on whether probate is required for a given asset in the first place.
Q: Is probate required if my spouse and I own everything jointly?
Generally no, for jointly titled assets — but any asset titled solely in one spouse’s name still requires probate, even between married couples.
Q: Does a small estate still need probate in Florida?
Possibly, but Florida just made this easier: as of July 1, 2026, Summary Administration is available for estates with $150,000 or less in non-exempt assets (up from $75,000), or when the person has been deceased more than two years. A small estate affidavit may also apply for very limited estates. See our comparison of Florida’s probate paths to understand which might apply.
Q: What’s the difference between needing probate and needing a specific type of probate?
Whether probate is needed at all depends on asset titling; if it is needed, Florida then has two main paths — Formal and Summary Administration — depending on the estate’s size and other factors.
Know Where You Stand Before You Guess
Understanding whether your loved one’s assets require probate is the first step — and it’s not always obvious from the outside. At SJF Law Group, we help Florida families sort through exactly this question. Contact us to walk through your specific situation, or explore our free probate flowchart and checklist to get started on your own.
