Common Mistakes in Probate in Florida, and How to Approach Them Carefully

Common Mistakes in Probate in Florida

What are the common mistakes in probate? The errors that come up most often include losing track of the will, mishandling creditor notice steps, misusing estate property, overlooking assets, skipping tax filings, and poor communication with heirs and beneficiaries. Whether any of them causes a problem depends on the governing will or trust, Florida law, and the facts of the estate.

If you were just named in a will, or asked to help a family after a death, the paperwork can feel overwhelming. Many readers are not lawyers. They are adult children, siblings or friends trying to understand a process they never chose. This guide explains each mistake in plain terms, so you know what questions to raise.

Probate is the court-supervised process for handling a Florida decedent’s estate. Its steps depend on whether there is a will, what any trust says, and the facts of the estate. For an overview of the practice area, see our probate litigation attorney page.

Why Common Mistakes in Probate Matter

Mistakes in probate can add cost, delay and tension among the people involved. Whether a particular error causes harm depends on the governing instrument, applicable Florida law, and the facts of each estate.

Florida law assigns many administration tasks to the personal representative (often called an executor). These tasks include gathering records, giving notice to creditors, and paying claims in a set order. How each task applies depends on the will and the situation. A small estate with a clear will can look very different from one with a missing document, a business interest or a family disagreement.

Many readers come to this topic under pressure. A parent has died, a sibling has been named, or a relative has asked for help. The steps below are not a checklist you must follow. They are areas where mistakes can occur, and each one is worth raising with a lawyer who knows your facts.

Failing to Locate the Will and Key Estate Documents

A missing will or trust document can slow the opening of an estate. Its effect depends on what the document says and whether another version exists. Florida law also covers how a will reaches the court. Under § 732.901, the custodian of a will must deposit it with the clerk of the court within 10 days after learning the testator has died. How that applies depends on the facts of each case.

Beyond the will, families often need other records early. These can include deeds, bank and brokerage statements, insurance policies, business records and earlier estate planning drafts. A missing deed or account can change which assets fall under the estate. How that works depends on how each asset is titled.

Drafting problems also cause trouble. Examples include unclear asset descriptions, beneficiary designations that no longer match the plan, and provisions that conflict with each other. Their effect depends on the governing instrument and Florida law. Readers who also question whether a will is valid can read how to contest a will in Florida. Florida law also provides that a contest may not be started before the testator’s death, under § 732.518.

Delaying the Probate Process

How long an estate stays in probate depends on its size, complexity, creditor activity, disputes and court schedules. No single timeline fits every estate.

Delays often start with missing information. An asset nobody has found, a slow reply from a bank, or a disagreement among heirs can each add weeks or months. Some delays are outside anyone’s control, such as court calendars.

Timing rules matter, but their effect depends on applicable law and the facts of each case. Under § 733.2121, notice to creditors is published once a week for 2 consecutive weeks in a newspaper in the county where the estate is administered. Under § 733.702, a claim is not binding on the estate unless it is filed in the probate proceeding by the later of 3 months after first publication of the notice, or, for a creditor who must be served, 30 days after service. The statute also says an untimely claim is barred unless the court extends the time. Those periods apply differently to each estate, so don’t assume one date fits all.

Mismanaging Estate Assets

A personal representative’s power over estate property depends on the will, applicable Florida law and any court orders. Under § 733.609, a personal representative’s fiduciary duty is the same as a trustee’s fiduciary duty under an express trust. The statute also says a personal representative may be liable to interested persons for damage or loss from a breach of that duty. Whether a breach occurred depends on the facts of each case.

Common missteps include mixing estate money with personal funds, using estate property for personal benefit, and keeping poor records of receipts and payments. Whether a specific act is permitted or problematic depends on the governing instrument, applicable law and the facts involved. Clear records may help explain each transaction, though results vary. The same statute provides that, in actions for breach of fiduciary duty or challenges to how powers were used, the court shall award taxable costs, including attorney’s fees. How that provision applies depends on the case.

Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries, subject to the governing instrument and applicable law.

Not Properly Identifying and Valuing Assets

Overlooked assets and wrong values can throw off the inventory and the distribution. How much a mistake matters depends on how each asset is titled and what the will or trust says. Small bank accounts, vehicles, digital accounts and jointly held property are easy to miss. A joint account may pass to the surviving owner outside the estate, depending on how it was set up.

Under § 733.604, unless an inventory was filed earlier, a personal representative must file a verified inventory. It lists estate property in reasonable detail, with each item’s estimated fair market value at the date of death. If new property turns up, or a listed value is wrong, the statute requires an amended or supplementary inventory.

Valuation matters for tax reporting and for fair division among heirs. The method depends on the asset type and applicable law. Gather account statements, deeds and appraisals where appropriate, and keep dated copies of each one.

Not Notifying Creditors and Handling Debts

Creditor notice and claim rules come from Florida law. How they apply depends on the estate’s circumstances and the facts of each case. Under § 733.701, unless creditors’ claims are otherwise barred, the personal representative must cause notice to creditors to be published and served. Under § 733.2121, that notice must say creditors must file claims within the statutory periods or be forever barred.

Common mistakes include paying claims out of order, distributing assets before debts are reviewed, and overlooking secured debts such as mortgages. Florida law sets an order for paying estate expenses. Under § 733.707, the personal representative pays expenses and obligations in a statutory order. Class 2 covers reasonable funeral, interment and grave marker expenses, not to exceed $6,000 in the aggregate. If the estate cannot pay every creditor in a class, that class is paid ratably after the preceding classes.

Secured debt follows its own rule. Under § 733.803, a specific devisee of encumbered property is entitled to have the encumbrance paid from the residue only when the will shows that intent. A general direction to pay debts does not show that intent.

Ignoring Tax Filings and Tax Implications

Estate-related tax filings depend on the size and nature of the estate and on current law. Some estates need a federal return, and others may not. The information on this page is general and is not tax advice for your situation; to discuss how estate tax rules may apply to your own estate, you can schedule a strategy call with Trust Counsel or call (305) 707-7126.

For estate tax returns, IRC § 6075(a) states that returns are to be filed within 9 months after the date of the decedent’s death. Extensions and other rules may apply, depending on the facts. As an IRS revenue procedure explains, federal legislation amends § 2010(c)(3) by increasing the basic exclusion amount to $15,000,000 for calendar year 2026. Whether a federal estate tax filing is required depends on the estate’s size and current law.

Oversights can include overlooking final income tax returns, which depend on each person’s situation. Misunderstanding the basis of inherited property is another. Under IRC § 1014, the basis of property acquired from a decedent is determined under that section, subject to its listed categories and exceptions. Tax treatment depends on the facts and applicable law.

Not Communicating With Beneficiaries and Heirs

Beneficiaries and heirs may have information rights that depend on the governing instrument and Florida law. Under § 733.604, a beneficiary may request, in writing, an explanation of how an inventory value was determined, or a copy of an appraisal if one was obtained. The personal representative must notify each beneficiary of these rights. Which information a beneficiary may receive depends on the statute’s categories and the facts.

Poor communication can add friction. Unexplained delays and incomplete accountings can lead to misunderstandings. Whether that becomes a dispute depends on the facts of each case. Clear, dated updates are one practice that may help reduce friction, though they cannot promise a result.

Payments made in error can also raise questions. Under § 733.812, a distributee or claimant who was paid improperly must return the assets or funds received, with income or interest since distribution. That rule does not apply if the payment cannot be questioned because of adjudication, estoppel or limitations. How it applies depends on the facts.

When Probate Mistakes Lead to Litigation, and Next Steps

Some probate disagreements move into litigation. Whether that happens depends on the governing instrument, applicable Florida law and the facts of each case.

Trust Counsel’s lawyers focus on probate litigation, trust litigation and trust administration. They may advise or represent clients, subject to the governing instrument and applicable law. The probate litigation attorney page describes that work in more detail. Our only office is in Coral Gables, Florida.

Knowing the common mistakes in probate can help you ask better questions before decisions are made. If you’ve been named in a will or asked to help with an estate in Florida, you don’t have to sort it out alone. Call (305) 707-7126 or schedule a conversation online to talk through your situation.

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