Are a decedent's ashes part of the probate estate?

No, cremated remains are not part of the probate estate in Florida.

In section 497.607 of the Florida Statutes, it is established that cremated remains are not “property” as defined in section 731.201(32) of the Florida statutes. This means that a decedent’s ashes are not "real and personal property or any interest in it and anything that may be the subject of ownership.” Yet an “estate,” as defined by section 731.201(14), is made up entirely of “property.” Thus, it can be said with certainty that a decedent’s cremated remains are not part of the that decedent’s probate estate.

This means that what happens to the ashes is not solely determined by the last will and testament, which governs the assets contained within the probate estate. This also means that the ashes do not fall into the residuary estate. And if there are multiple people who receive the residuary estate (such as multiple children of the decedent), the ashes will not be split up between them, unless it can be shown that this was the desire of the testator.

Ultimately, it is the intent of the testator (same person as the decedent) that matters. The intent of the testator is determined by a showing of “clear and convincing evidence.” That evidence can certainly include a will, but the will is not by itself dispositive. If there is good reason to believe that the testator changed their mind after the drafting of the will, then any direction in the will regarding the ashes could be ignored.

This leaves estate planners in a difficult position. Any provision in a will dealing with cremated ashes is not dispositive because the ashes are not part of the probate estate. However, I (and most estate planners) prefer to include this information in the will regardless because it can help establish the intent of the testator, which is dispositive. So, the big takeaway for someone preparing to make or revise their will is to include any cremation desires in your will, but also be sure to communicate those desire to loved ones in other ways. You want to create “clear and convincing evidence” or your wishes. And if you change your mind about what to do with your ashes, update your will accordingly.