What Assets Are Protected from Creditors During Florida Probate?

Probate is the legal process of settling an estate following a person’s death. During the probate process, an accounting of estate assets takes place, debts and taxes are paid, and the remaining property is distributed to beneficiaries. When an estate does not have sufficient funds to pay creditors, assets may need to be liquidated. However, Florida probate law shields certain assets from creditors’ claims. To ensure that you are taking the right steps during the probate process, you should consult with our South Florida probate lawyer at Brian K. McMahon, P.A.

Homestead Property

Florida’s homestead exemption protects a primary residence from forced sale by creditors after a person’s death. If the residence is your primary home and not a vacation or rental property, it may qualify. The protection applies if the home passes to a spouse or heirs, but not if the home is sold outside the family. Size matters, with the homestead protection applying to properties that are up to 160 acres of contiguous land in rural areas and properties up to ½ acre in a municipality.

This protection can be a great help to Florida families, preventing creditors from forcing sale of the home if an individual dies with medical bills or credit card debt. However, mortgages, unpaid property taxes, construction liens, and federal taxes are not exempt from the homestead protection. If a family fails to pay these expenses, the home could be subject to foreclosure.

Jointly Held Property

If you co-own property with another person with right of survivorship, this asset will bypass probate and thereby, be protected from creditors. This includes property owned as joint tenants with right of survivorship (JTWROS) and tenants by the entirety (TBE). JTWROS is a form of ownership in which an owner’s respective share will automatically pass to the other owner(s) when they die. Each owner owns a certain percentage of the property.

This differs from TBE, which is a form of joint ownership reserved for married couples. In this form of ownership, both married persons are considered to own a 100% undivided interest in the property. In TBE, upon one spouse’s death, the surviving spouse retains 100% ownership of the property.

Life Insurance Proceeds and Retirement Accounts

These assets are not considered part of the estate and come with their own statutory creditor protections. Both assets name beneficiaries, allowing proceeds to transfer funds to your designated heir without having to go through probate.

Statutory Exempt Property

According to Fla. Stat. §732.402, if the deceased was a Florida resident at the time of their death and left a surviving spouse (or children, if no surviving spouse), the following property will be exempt from creditors’ claims:

• Household furniture, furnishings, and appliances in the decedent’s primary residence, with a net value of $20,000 as of the date of death
• Two motor vehicles which do not individually have a gross weight exceeding 15,000 pounds held in the decedent’s name and regularly used by the decedent or family members as their personal vehicles
• All qualified tuition programs (529 plans)
• Certain death benefits for teachers and school administrators

Personal Property Exemption

Art. X, §4 of the Florida Constitution exempts up to $1,000 of personal property for the benefit of the surviving spouse or heirs of the owner.

Exempt Property Is Not Counted as Part of Estate Value

Exempt property will not only be shielded from creditors, but these assets will not comprise the final value of your probate estate. Given that Florida law shields several categories of assets from estate creditors, this may provide certain advantages. One of which is the type of probate you will need to file. For example, if the estate is valued at less than $150,000, the estate may qualify for summary administration. (The summary administration threshold was raised from $75,000 to $150,000 as of July 1, 2026. However, anyone that died before July 1, 2026, will be governed by the $75,000 cap). Significantly less time-consuming than formal administration, summary administration may be completed in a few weeks. Also, it has lower court filing fees and legal costs.

Reach Out to Our South Florida Probate Attorney

Determining which estate property is protected from creditors can be a tedious process. Florida law shields several categories of assets from creditors’ claims, providing families financial relief in the face of hardship. If you have any questions in navigating the probate process, our South Florida probate lawyer is more than happy to assist you. To discuss your probate matter, contact Brian K. McMahon, P.A., online or by calling (561) 658-1789 today.