Key Takeaways

• Probate in Florida is a court-supervised process that typically takes 9 months to a year, costs roughly 3% of the estate in attorney’s fees alone, and is open to public challenges — all of which can be avoided with the right plan.
• A revocable living trust is the gold standard for avoiding probate, but only works if your assets are properly retitled into the trust’s name.
• Beneficiary designations and joint ownership can help avoid probate, but both come with significant pitfalls if not maintained and structured correctly.
• Florida’s homestead laws create unique complications for married couples and blended families — mistakes here can trigger years of costly litigation.
• Estate plans are not “set it and forget it” documents — they must be updated as your life, assets, and family circumstances change.

If you’ve ever wondered how to protect your family from the time, cost, and stress of the Florida court system after you’re gone, you’re not alone. Avoiding probate is one of the most talked-about topics in estate planning — and one of the most misunderstood. Stephen Lacey of Lacey Rezanka Attorneys at Law breaks down exactly what probate is, why so many Florida families want to avoid it, and what strategies actually work. Stephen’s firm practices estate planning, probate, real estate law, elder law, and land use and zoning law, serving families throughout Brevard County and surrounding communities including Titusville, Rockledge, Viera, Melbourne, Suntree, Palm Bay, Merritt Island, Cape Canaveral, Cocoa Beach, Satellite Beach, Indialantic, Melbourne Beach, Indian Harbor Beach, and extending into Indian River County and Palm Beach County.

What Is Probate — and Why Does It Exist?

Before diving into how to avoid probate, it helps to understand what it actually is and why Florida requires it.

Stephen Lacey: “Probate in Florida is a court process. Florida statutes require that you hire an attorney to take you through the probate process. The true definition is proving a will.”

In practical terms, probate does two things. First, it identifies creditors — both known and unknown — and gives them a window to file claims against the estate. This actually shortens the statute of limitations on what creditors can pursue. Second, it retitles assets out of the deceased person’s name and into the hands of the right beneficiaries, either according to the terms of a will or, if there’s no will at all, according to Florida’s intestacy statutes — essentially the state’s default rulebook for who gets what.

If you pass away with assets titled solely in your individual name and no trust-based plan in place, those assets will go through probate — period.

Why Do People Want to Avoid Probate?

The reasons are straightforward: probate is expensive, it’s slow, and it’s public.

Stephen Lacey: “It’s expensive, it’s lengthy — and basically probate means leaving yourself to the state’s rule book.”

Here’s what the process actually looks like from start to finish. Once someone passes away, the family or an interested party, such as a beneficiary, must petition the court to formally appoint a personal representative — the person who manages the estate. That appointment process alone takes 45 to 60 days. During that time, surviving family members and beneficiaries may have little or no access to the decedent’s assets, even if they depend on them for living expenses.

From there, the estate must publish a notice to creditors in a local newspaper, giving unknown creditors 90 days to file claims. An inventory of assets is then prepared and provided to beneficiaries, who have the right to object. By the time all of this plays out, you’re already looking at roughly six months — and the typical Florida probate runs nine months to a full year. In contested cases, it can drag on far longer. Stephen has had one probate case that lasted eight years due to a dispute with a former business partner.

On the cost side, Florida statutes set a baseline of 3% of the estate’s value as a reasonable attorney’s fee for handling probate — and that’s before you add in the approximately $400 court filing fee and $100 to $200 for newspaper publication. On a $500,000 estate, that’s $15,000 or more just in legal fees.

Then there’s the emotional dimension. Probate prolongs grief. Families who are ready to close a chapter find themselves stuck in an ongoing legal process for the better part of a year or more. And because probate is a public court proceeding, it creates an open forum for disputes. Stephen has seen cases where someone who had been written out of a will entirely submitted a handwritten note to the court — and that was enough to stall the process for six months while the court sorted it out, driving up costs significantly.

The Gold Standard for Avoiding Probate: The Revocable Living Trust

If you ask Stephen Lacey what the best tool is for avoiding probate, the answer is clear.

Stephen Lacey: “The gold standard is a revocable trust. You live life as you always have — but it’s also very important for people to know that having the trust is not enough. You have to retitle assets into the name of the trust in order for those assets to avoid probate.”

What makes a revocable trust so powerful is its flexibility. Unlike simpler strategies, a well-drafted trust allows an attorney to build in Plan A, Plan B, Plan C, and Plan D — accounting for all the ways life can change. Consider what happens when someone relies solely on payable-on-death (POD) designations instead: if the named beneficiary predeceases you, the asset may pass to grandchildren who are minors. Under Florida law, any inheritance over $15,000 received by a minor must go through a court-supervised guardianship. That means annual accountings with the court, court approval every time money needs to be withdrawn, and ultimately a lump-sum distribution to the child at age 18 — with no restrictions on how they spend it.

A trust solves all of that. It can hold assets for a grandchild until a more appropriate age, distribute funds for specific purposes like education or healthcare, and do so without any court involvement or added expense.

Common Mistakes That Undermine an Estate Plan

Even clients who take the step of setting up a trust can find themselves back in probate court if they’re not careful. Stephen sees a few patterns repeat themselves regularly.

Failing to fund the trust. This is the single most common mistake. A trust that doesn’t hold your assets is essentially an empty container. Every account, piece of real property, and significant asset needs to be retitled into the trust’s name — or it will still go through probate.

Not updating the trust after major life changes. Stephen is currently working on a case where a client named only one successor trustee, and that person passed away before the grantor. The result was a court petition to have a new trustee appointed — extra cost, extra delay, exactly what the trust was supposed to prevent. Estate plans are living documents. They need to be reviewed when family circumstances change, when beneficiaries pass away, or when new assets are acquired.

Buying property in another state and leaving it outside the trust. This is a surprisingly common issue in Florida. Clients buy a vacation home in North Carolina, and the realtor tells them they can’t put it in a trust. They take that advice and don’t follow up with their attorney. When they pass away, the family faces two separate probate proceedings — one in Florida and one in North Carolina — and the Florida probate has to be completed first before an “ancillary probate” can even be opened in the other state. If someone owns real estate in three or four states, that’s potentially three or four probates.

Ignoring small accounts. It may feel unnecessary to retitle a bank account with only $10,000 in it. But Stephen points out that it can cost $4,500 or more to probate that one account — a frustrating and avoidable expense for the family left behind.

Other Tools That Can Help Avoid Probate

While a revocable trust is the most comprehensive solution, there are other tools that play a supporting role in a complete estate plan.

Beneficiary Designations (POD and TOD Accounts)

Payable-on-death and transfer-on-death designations work by contract — the financial institution is simply instructed to pay the named person directly upon the account holder’s death, bypassing probate entirely. This applies to bank accounts, life insurance policies, and some investment accounts.

The catch is that these designations must be kept current. A designation listing a deceased beneficiary means the asset will fall back into the estate and go through probate. Stephen shared a particularly sobering example: an elderly man whose wife was on the verge of passing away took his own life just before she died, believing she would outlive him. His life insurance named her as the sole beneficiary. Despite having a well-structured trust covering everything else, that one life insurance policy had to go through probate because the beneficiary was already gone.

Retirement accounts come with additional complexity. Because of IRS rules, naming the wrong beneficiary on a 401(k) or IRA can trigger unintended tax consequences. This is an area where professional guidance is especially important.

Joint Ownership with Right of Survivorship

Florida recognizes two forms of joint ownership that can avoid probate: Joint Tenancy with Right of Survivorship (for non-married co-owners) and Tenants by the Entirety (specifically for married couples). In both cases, when one owner dies, the asset automatically passes to the surviving owner — no probate required.

However, the exact language on the deed or account title matters enormously. Simply listing two names is not enough. The document must include the correct legal language — “as husband and wife,” “as tenants by the entirety,” or “as joint tenants with right of survivorship” — or the deceased owner’s share may have to be probated anyway.

There’s also a bigger limitation: joint ownership only solves the problem once. When the surviving owner later passes away, if no other plan is in place, the asset goes to probate. As Stephen puts it, “Joint tenancy works well for the first step, but not for the second.”

Florida-Specific Considerations: Homestead Rules

Florida’s homestead laws are a world unto themselves, and they intersect with probate in ways that catch many families completely off guard.

The core principle is that Florida law protects a surviving spouse and minor children from being displaced from their primary residence. This means there are legal restrictions on what a homeowner can actually do with their homestead property — restrictions that a will or trust must navigate carefully.

In practical terms, this often means filing a “Petition to Determine Homestead” during the probate process to establish how the property should legally pass. Where it gets particularly complicated is in blended families and second marriages. Stephen described a scenario where a husband in a second marriage wanted his home to pass to his children from a prior relationship. Because it wasn’t structured correctly and there was no prenuptial agreement, when the husband passed away, the surviving wife automatically received a tenancy-in-common interest in the property — meaning she became a co-owner alongside the children.

Stephen Lacey: “If that’s not done correctly, if you don’t have proper waivers in place, that can really throw probate into chaos.”

Stephen is currently handling a homestead dispute that is now nine years old and heading to the appeals court — all because the original planning wasn’t done correctly.

County-by-County Differences in Florida Probate

While the core probate process is governed by Florida statutes, local courts can add their own requirements. In Miami-Dade and Broward counties, courts frequently require estate assets to be held in restricted accounts during probate, which adds cost and complexity — likely a response to the higher rates of financial fraud seen in South Florida. More recently, Brevard County has begun requiring an “Affidavit of Heirs,” a document the personal representative must complete identifying all heirs of the estate. This was previously more common in South Florida but is now making its way into Central Florida courts.

If Probate Can’t Be Avoided: How to Make It Less Painful

Sometimes, despite best efforts, probate is unavoidable. When that happens, there are steps families can take to make the process faster, cheaper, and less contentious.

The most important thing a person can do before they pass away is leave behind an organized inventory of their assets — account numbers, property documents, the location of the original will, and clear instructions for the personal representative. Stephen once had a client bring in five banker’s boxes of unsorted paperwork and ask him to figure out what was important. That kind of disorganization translates directly into billable hours.

Choosing the right law firm also makes a significant difference. A firm that communicates promptly, keeps the case moving, and maintains transparency with all beneficiaries can prevent the suspicion and mistrust that turn straightforward probates into contested ones. Once beneficiaries start wondering if something is wrong, it’s very hard to change their minds — and a contested probate is far more expensive than a smooth one.

Take the First Step to Protect Your Family

No one enjoys thinking about death or disability. But the families who avoid the most heartache are the ones who planned ahead — quietly, thoughtfully, and with the right guidance.

If you live in Brevard County or the surrounding areas and want to make sure your family doesn’t spend a year in probate court when you’re gone, the team at Lacey Rezanka Attorneys at Law is ready to help. Their process is designed to put clients at ease: a warm intake process, knowledgeable paralegals, and a consultation focused entirely on your individual goals — not a generic template.

Ready to protect your family and avoid probate? Schedule a consultation with Stephen Lacey and the team at Lacey Rezanka Attorneys at Law today.

📞 Call: (321) 608-0890 🗓️ Schedule Online: llr.law/contact

Serving Titusville, Rockledge, Viera, Melbourne, Suntree, Palm Bay, Malabar, Merritt Island, Cape Canaveral, Cocoa Beach, Satellite Beach, Indian Harbor Beach, Indialantic, Melbourne Beach, and all of Brevard County, Indian River County, and Palm Beach County.