Estate Planning Essentials for Florida Residents

Estate planning isn't about death. It's about protecting your family, preserving your assets, and ensuring your wishes are honored when you can't speak for yourself. Whether through incapacity or death, estate planning addresses what happens when you're no longer able to manage your own affairs.

Florida's estate planning landscape includes unique provisions—homestead protections, creditor exemptions, and specific probate procedures—that don't exist in many other states. Understanding these Florida-specific considerations is essential to creating an effective estate plan.

This guide examines the core components of estate planning for Florida residents and explains how these elements work together to protect you and your family.

Why Estate Planning Matters in Florida

Without estate planning documents, Florida law determines what happens to your assets, who makes medical decisions if you're incapacitated, and who manages your financial affairs. These default rules may not align with your intentions.

What Happens Without an Estate Plan

If you die without a will in Florida (dying "intestate"), state intestacy statutes dictate asset distribution:

• If you're married with no children, your spouse inherits everything
• If you're married with children (all from the current marriage), your spouse inherits everything
• If you're married with children from prior relationships, your spouse receives half and your children split the other half
• If you're unmarried with children, your children inherit everything equally
• If you have no spouse or children, assets pass to parents, then siblings, then more distant relatives

These distributions may not reflect your wishes, and they force your estate through probate—a public, time-consuming, and potentially expensive court process. The Florida Supreme Court oversees probate proceedings across all circuit courts in the state.

Incapacity Planning

Estate planning addresses more than death. If you become incapacitated without proper documents, your family must petition the court for guardianship to make medical and financial decisions on your behalf. Guardianship proceedings are public, expensive, and create family conflicts.

Powers of attorney and healthcare directives allow you to designate decision-makers in advance, avoiding court involvement entirely.

Florida Wills: Requirements and Limitations

A will is the foundation of most estate plans. It directs how assets are distributed, names guardians for minor children, and designates someone to manage estate administration.

Florida Will Requirements

Florida law imposes specific requirements for valid wills:

• Written document: Oral wills are not valid in Florida (with very limited exceptions)
• Testator capacity: You must be at least 18 years old and of sound mind
• Signature: You must sign the will at the end, or someone must sign for you in your presence at your direction
• Witnesses: Two witnesses must sign the will in your presence and in each other's presence
• Self-proving affidavit: Although not required for validity, a self-proving affidavit (signed before a notary) simplifies probate

Handwritten (holographic) wills are not valid in Florida unless they meet all formal requirements including witnesses. According to the Florida Statutes Chapter 732, proper execution formalities are strictly required.

Probate Process in Florida

Assets passing through a will must go through probate—a court-supervised process for settling estates. Florida probate involves filing the will, appointing a personal representative, inventorying assets, paying debts and taxes, and distributing remaining assets to beneficiaries.

Florida offers simplified probate procedures for small estates (under $75,000) and summary administration for estates meeting specific criteria. Most estates require formal administration lasting 6-12 months minimum.

Revocable Living Trusts

Revocable living trusts are increasingly popular estate planning tools in Florida. Unlike wills, trusts avoid probate entirely and provide greater privacy and control over asset distribution.

How Revocable Trusts Work

You create a trust document, transfer assets into the trust, and name yourself as trustee during your lifetime. You maintain complete control over trust assets—you can add assets, remove assets, modify terms, or revoke the trust entirely.

Upon your death or incapacity, your designated successor trustee takes over management and distributes assets according to trust terms. This happens without probate court involvement.

Funding the Trust

A trust only controls assets transferred into it. The most common mistake is creating a trust but failing to retitle assets. Real estate, investment accounts, bank accounts, and business interests should be transferred to the trust.

Some assets are better handled through beneficiary designations rather than trust funding (retirement accounts, life insurance), but the trust can be named as beneficiary for these assets.

Trusts vs Wills: Which Do You Need?

Factor	Will	Revocable Trust
Probate Required	Yes	No (for trust assets)
Privacy	Public record	Private
Cost to Create	Lower	Higher
Incapacity Planning	No (requires separate POA)	Yes
Guardian Nomination	Yes	No (requires separate will)
Ongoing Management	None	Must fund and maintain

Even with a trust, you need a "pour-over will" to catch any assets not transferred to the trust and direct them into the trust through probate. For additional context on trust-based planning versus probate, see our detailed comparison in Florida Probate vs Trust.

Durable Power of Attorney

A durable power of attorney (DPOA) authorizes someone to manage your financial affairs if you become incapacitated. This is essential incapacity planning that works alongside healthcare directives.

Choosing Your Agent

Select someone trustworthy, financially responsible, and capable of managing your affairs. This is often a spouse, adult child, or trusted family member. Consider naming successor agents in case your first choice cannot serve.

Agents have fiduciary duties to act in your best interests, but they're not supervised by courts unless disputes arise. Choose carefully.

Springing vs Immediate Powers

DPOAs can be:

• Immediate: Effective upon signing, allowing agent to act immediately
• Springing: Becomes effective only upon incapacity (requires doctor certification)

Immediate DPOAs are more practical since they avoid the need to prove incapacity before the agent can act. If you trust someone enough to name them agent, immediate authority usually makes sense.

Healthcare Directives and Living Wills

Healthcare directives allow you to designate someone to make medical decisions if you cannot, and to specify your preferences regarding end-of-life care.

Healthcare Surrogate Designation

Florida's healthcare surrogate designation names an individual to make medical decisions on your behalf if you're unable to communicate. Your surrogate has authority to:

• Consent to or refuse medical treatment
• Access medical records
• Choose healthcare providers
• Make decisions about long-term care placement

Without a healthcare surrogate designation, Florida law establishes a priority order of family members who can make decisions, but this can lead to disputes when family members disagree.

HIPAA Authorization

Include HIPAA authorization in your healthcare documents allowing your designated individuals to access your medical information. Without this authorization, healthcare providers may refuse to discuss your condition with family members due to privacy regulations.

Beneficiary Designations

Many assets transfer outside your will and trust through beneficiary designations. These designations override anything stated in your will or trust, making them critically important to coordinate with your overall estate plan.

Assets with Beneficiary Designations

• Retirement accounts: 401(k)s, IRAs, pension plans
• Life insurance: Individual and group policies
• Annuities: Both qualified and non-qualified
• Payable-on-death (POD) accounts: Bank accounts with designated beneficiaries
• Transfer-on-death (TOD) accounts: Investment accounts with designated beneficiaries

Review beneficiary designations regularly, especially after major life events (marriage, divorce, births, deaths). Outdated designations can result in assets passing to unintended recipients.

Naming Trusts as Beneficiaries

For retirement accounts, careful consideration is required when naming trusts as beneficiaries. While trusts provide control over distributions, they can trigger adverse tax consequences if not properly structured.

Life insurance proceeds can effectively be directed to trusts, providing control over how beneficiaries receive funds without creating tax issues.

Florida Homestead Protection

Florida's homestead laws provide some of the strongest property protections in the United States, affecting both estate planning and creditor protection.

Constitutional Homestead Protection

Under the Florida Constitution, homestead property is:

• Protected from most creditors: Judgment creditors cannot force sale of homestead property (with exceptions for mortgages, tax liens, and construction liens)
• Exempt from forced sale: Provides unlimited equity protection unlike bankruptcy homestead exemptions in many states
• Subject to devise restrictions: If you're survived by a spouse or minor children, you cannot freely devise homestead property by will

Homestead Devise Restrictions

Florida Constitution Article X, Section 4 restricts how you can leave homestead property:

• If survived by a spouse, homestead property must pass to the spouse (unless spouse validly waives rights)
• If survived by minor children, you cannot devise homestead away from them
• If survived by a spouse and minor children from a prior relationship, complex restrictions apply

These restrictions cannot be overridden by will provisions. Attempting to devise homestead in violation of these rules can invalidate those provisions.

Asset Protection Strategies

Beyond homestead protection, Florida law provides several asset protection mechanisms that integrate with estate planning.

Tenancy by the Entireties

Property owned by married couples as tenancy by the entireties is protected from creditors of individual spouses. Only joint creditors (debts owed by both spouses) can reach entireties property.

This protection is automatic for real estate owned by married couples in Florida. Other assets (bank accounts, investment accounts) can be structured as tenancy by the entireties but require specific language.

Asset Protection Trusts

Florida allows domestic asset protection trusts (DAPTs) that can shield assets from future creditors while allowing you to benefit from trust assets. These trusts require careful structuring and have limitations:

• Must be irrevocable (you cannot retain full control)
• Subject to fraudulent transfer rules if created to avoid existing creditors
• May not protect against all claim types
• Require independent trustee (you cannot be sole trustee)

Qualified Personal Residence Trust (QPRT)

QPRTs allow you to transfer your residence into an irrevocable trust while retaining the right to live there for a specified term. This removes the property from your taxable estate at a discounted value while allowing continued use.

QPRTs serve both estate tax and limited asset protection purposes but require careful analysis of tax implications and timing.

Federal Estate Tax Considerations

Florida does not impose state estate tax or inheritance tax. However, federal estate tax applies to estates exceeding the federal exemption amount.

Current Federal Estate Tax Framework

For 2026, the federal estate tax exemption is $13.99 million per individual ($27.98 million for married couples with proper planning). Estates below these thresholds owe no federal estate tax.

The Tax Cuts and Jobs Act temporarily increased exemptions through 2025. Without congressional action, exemptions will drop to approximately $7 million per person (inflation-adjusted) in 2026. Check the IRS estate tax page for current exemption amounts.

Portability and Estate Tax Planning

Married couples can preserve unused estate tax exemption through portability. When the first spouse dies, the surviving spouse can claim the deceased spouse's unused exemption by filing an estate tax return within nine months (even if no tax is owed).

Portability provides simpler estate tax planning for many couples but doesn't offer the creditor protection and control provided by traditional bypass trust planning.

Estate Planning for Taxable Estates

For estates exceeding exemption amounts, advanced planning techniques include:

• Irrevocable life insurance trusts (ILITs)
• Grantor retained annuity trusts (GRATs)
• Charitable remainder trusts (CRTs)
• Family limited partnerships (FLPs)
• Annual gifting programs

These strategies require professional guidance from attorneys experienced in estate tax planning.

Common Estate Planning Mistakes

1. No Estate Plan

The most common mistake is having no estate plan at all. Procrastination leaves your family subject to intestacy laws, probate complications, and potential guardianship proceedings.

2. Outdated Documents

Estate plans should be reviewed every 3-5 years and after major life events (marriage, divorce, births, deaths, significant asset changes). Documents created years ago may no longer reflect your wishes or current law.

3. Failure to Fund Trusts

Creating a revocable trust but failing to transfer assets into it defeats the purpose. Unfunded trusts provide no probate avoidance benefits.

4. Ignoring Beneficiary Designations

Failing to coordinate beneficiary designations with your overall estate plan can result in unintended distributions. Ex-spouses frequently remain beneficiaries on retirement accounts years after divorce.

5. DIY Estate Planning

Online forms and software cannot address Florida-specific considerations, family dynamics, or tax implications unique to your situation. Generic documents often contain provisions invalid under Florida law or fail to accomplish intended goals.

6. Not Discussing Plans With Family

While estate planning documents don't need to be shared with everyone, discussing your intentions with key family members and fiduciaries helps avoid confusion and disputes after death or incapacity.

7. Improper Guardian Nominations

Naming guardians for minor children without discussing it with the nominated individuals can create problems. Ensure your chosen guardians are willing and able to serve.

Working With an Estate Planning Attorney

Estate planning involves complex legal, tax, and family considerations that require professional guidance. While you can theoretically create estate planning documents yourself, the risk of errors, omissions, and unintended consequences makes professional assistance valuable.

What an Estate Planning Attorney Provides

Experienced estate planning attorneys offer:

• Comprehensive analysis: Evaluating your assets, family structure, and goals to recommend appropriate planning strategies
• Document preparation: Drafting customized documents that comply with Florida law and address your specific situation
• Tax planning: Structuring estates to minimize federal estate taxes and income tax consequences
• Asset protection: Implementing strategies to protect assets from creditors while achieving estate planning goals
• Coordination: Ensuring all estate planning components work together (wills, trusts, beneficiary designations, business succession)
• Family dynamics: Addressing potential conflicts and structuring distributions to minimize disputes

When to Work With an Attorney

Consider professional estate planning assistance if you:

• Own real estate or substantial assets
• Have minor children requiring guardian nominations
• Want to avoid probate through trust-based planning
• Have blended family situations
• Own business interests
• Have estate tax concerns
• Need asset protection planning
• Have beneficiaries with special needs
• Want to provide for charitable giving