Does a Very Small Estate
Need Probate at All?

I tell every family who calls about a small estate the same thing: there are three sizes of Florida probate, and the smallest one is not a probate at all. Most law firm websites do not mention it because there is no fee in it. Here is how it works and how to tell whether it fits.

The Test, in the Statute’s Own Words

Section 735.301(1) says no administration is required, and no formal proceeding need be filed, where the decedent left only:

• personal property exempt under Fla. Stat. § 732.402 (household furnishings up to a set value and up to two motor vehicles, for a surviving spouse or children),
• personal property exempt from creditors under the Florida Constitution, and
• non-exempt personal property whose value does not exceed the sum of the preferred funeral expenses and the reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

Notice what is missing: real estate. If the decedent owned a house, a lot, or a share of one, this procedure is off the table and the estate goes to summary or formal administration.

How the Arithmetic Works

The threshold is not a fixed dollar figure. It moves with the bills. A modest funeral of $6,000 and no medical expenses gives you a $6,000 ceiling. A death after a long hospitalization, with $40,000 of billing in the final two months, gives you a $46,000 ceiling. That is why a single bank account of $15,000 might need a summary administration in one family and nothing at all in another.

Who Applies, and How

The statute allows an informal application “by affidavit, letter, or otherwise” by any interested party. In practice the applicant is the person who paid the funeral and last-illness bills, because the money is released to reimburse those payments. Most clerks have a form. You attach the death certificate, the paid funeral bill, the medical bills for the last 60 days with proof of payment, and a statement of the asset with its account number. The filing fee is $230 (Fla. Stat. § 28.2401). The court then issues a letter or order under seal authorizing the holder to transfer the property, and under § 735.301(3) the bank that complies is discharged from any further liability.

What It Cannot Do

• It cannot transfer real estate, in any amount.
• It cannot reach assets worth more than the funeral-plus-60-days figure.
• It does not sort out disputes between heirs. If two people each claim to have paid the bills, or the family disagrees about who should receive the balance, the clerk will not referee it.
• It does not appoint anyone. There is no personal representative to sign a deed, pursue a claim, or deal with a creditor.

When It Fails, Summary Administration Is Next

If the non-exempt property is over the ceiling but the whole probate estate is $150,000 or less, or the death was more than two years ago, the estate qualifies for summary administration under § 735.201. That is a real court petition with a real order, and it is the procedure that handles a house, a larger account, or several heirs. Truestead files it for a flat $1,495, or $2,495 when real property and a homestead determination are involved. I would rather tell a family the clerk form will do than sell them a probate they do not need, and I say that on the fee page so it is a promise, not a slogan.

Related Reading

• Florida Summary Administration: The Complete Guide: the next size up.
• What Summary Administration Costs: if the clerk form will not do.
• Who Pays for Probate in Florida: and whether anyone pays up front.
• Summary Administration by County: where it is filed and what each circuit requires.

This article is for general informational purposes and does not constitute legal advice. Eligibility and procedure depend on the specific assets, creditors, and family circumstances. Consult a licensed Florida attorney regarding your situation. Arthur Simpson, Esq. is licensed to practice law in the State of Florida. Attorney advertising.