Florida Estate Planning: Wills, Trusts, Probate Basics

Estate planning in Florida covers the documents that decide who receives your property and who acts for you if you cannot act for yourself. This reference explains how the main tools work under Florida law: wills, trusts, powers of attorney, and health care directives, along with the probate process that carries a plan out after death. The rules described here apply statewide; the forms and filing steps vary by county and judicial circuit.

What estate planning covers in Florida

An estate plan answers two different questions. One is who inherits your assets after you die. The other is who manages your money and medical care if you become incapacitated while still alive. A Florida plan generally addresses both, because the documents that handle each purpose are separate instruments.

The death-side tools are the will and, for many families, a revocable living trust. The incapacity-side tools are the durable power of attorney for finances and the advance directives for health care. A document that is valid for one purpose does not cover the others, so a person who signs only a will still has no one named to manage finances or medical decisions during a period of incapacity.

Two features set Florida apart from most states. The state levies no estate tax and no inheritance tax, so the only death tax most families face is the federal estate tax, which the IRS applies only to estates above a large exemption amount. And Florida gives a surviving spouse and minor children rights in the estate, especially in the family home, that can limit what a will is allowed to do. A plan drafted as though Florida were a typical state often produces a result the person did not intend.

The core documents and who they name

A will directs who receives the property that passes through your probate estate, and it names a personal representative, the term Florida uses for an executor, to gather assets, pay debts, and distribute what remains. A will takes effect only at death, and only after the probate court admits it. Naming a personal representative in the will is a nomination, not an appointment; the court still issues letters of administration before that person has authority to act.

A revocable living trust holds assets during your life and passes them to named beneficiaries at death without probate. You can amend or revoke it at any time while competent, and you typically serve as your own trustee until death or incapacity, when a successor trustee takes over. The catch is funding: only assets retitled into the trust’s name avoid probate, so a trust that is signed but never funded provides little benefit.

Several kinds of property pass outside a will entirely. Life insurance, retirement accounts, and payable-on-death or transfer-on-death accounts go straight to the named beneficiary. Property held jointly with right of survivorship passes to the surviving owner automatically. Because these designations override the will, a Florida plan is only as good as its beneficiary forms and titling; an out-of-date beneficiary designation can send an asset to an ex-spouse regardless of what the will says.

What makes a will valid in Florida

Florida sets exact formalities for signing a will, and a will that misses them can be denied probate. Under Fla. Stat. § 732.502, the person making the will (the testator) must sign it at the end, and two witnesses must watch the testator sign or acknowledge the signature, then sign the will themselves in the presence of the testator and of each other.

Florida does not recognize a holographic will, meaning one handwritten and signed by the testator but not witnessed, even though many other states do. It also does not recognize a nuncupative, or oral, will. A handwritten document is valid in Florida only if it was signed with the two-witness formalities that § 732.502 requires. A will validly executed in another state is generally honored in Florida if it met that state’s signing rules.

Most Florida wills are made “self-proving” by adding a notarized affidavit signed by the testator and the witnesses at the time of signing. A self-proving will can be admitted to probate without locating the witnesses years later to confirm their signatures, which speeds administration and reduces cost.

Homestead and a surviving spouse’s protected share

Florida’s homestead protections are among the strongest in the country, and they can override the terms of a will. If a person is survived by a spouse and one or more descendants, Fla. Stat. § 732.401 bars an outright gift of the homestead to anyone else. Instead, the surviving spouse takes a life estate with the remainder to the descendants, or the spouse may elect within 6 months of the death to take an undivided one-half interest as a tenant in common. The election, once made, is irrevocable.

Florida also protects a spouse who is left out of a will or given very little. Under Fla. Stat. § 732.2065, a surviving spouse may claim an elective share equal to 30 percent of the “elective estate,” a figure that reaches beyond the probate estate to include many non-probate assets such as certain trusts and jointly held property. The elective share is a right the spouse chooses to exercise within statutory deadlines; it is not paid automatically.

Together, these rules mean a Florida will cannot fully disinherit a spouse, and cannot freely give away a homestead when a spouse or a minor child survives. Blended families feel these limits most sharply, because a plan that leaves the home to children from a prior marriage can collide with the surviving spouse’s homestead rights.

Trusts, powers of attorney, and health care directives

A revocable living trust is the tool Florida families most often use to keep assets out of probate. Under Fla. Stat. § 736.0402, a trust is created when the settlor has capacity, indicates an intent to create it, names a definite beneficiary, and gives the trustee duties to perform. Signing the trust is only half the job; funding it by retitling accounts and deeds into the trust’s name is what actually avoids probate.

A durable power of attorney keeps working after the principal becomes incapacitated, which is the entire reason to sign one. Fla. Stat. § 709.2104 makes a power of attorney durable when it contains language showing the principal’s intent that the agent’s authority survive later incapacity. A Florida power of attorney is effective when signed, because the state no longer allows “springing” powers that begin only after a doctor certifies incapacity.

Health care directives cover medical decisions. A living will lets a competent adult direct whether life-prolonging procedures are used in a terminal condition, an end-stage condition, or a persistent vegetative state. Fla. Stat. § 765.302 requires the living will to be signed in the presence of two witnesses, at least one of whom is neither a spouse nor a blood relative. A separate health care surrogate designation names the person who speaks for the patient when the patient cannot, and many people sign both so that someone can act while their written wishes guide the decision.

Dying without a will: Florida intestate succession

When a person dies without a valid will, the estate is “intestate,” and Florida law, not the family, decides who inherits. Under Fla. Stat. § 732.101, any property not effectively disposed of by will passes to the decedent’s heirs, and the heirs’ right to that property vests at the moment of death.

The statutory order runs to the surviving spouse and descendants first, then to parents, then to siblings and more distant relatives. A surviving spouse’s share depends on whether the decedent left descendants and whether those descendants are also the spouse’s children, so a spouse does not always inherit everything. Intestacy cannot direct assets to a friend, an unmarried partner, a stepchild who was never adopted, or a charity; only the relatives the statute names can inherit. For many people, that gap between the statutory result and their actual wishes is the reason to sign a will in the first place.

Probate and taxes: how a Florida estate is settled

Probate is the court process that transfers a decedent’s assets, resolves creditor claims, and closes the estate. Florida offers two main paths. Formal administration is the standard process, run by a personal representative the court appoints. Summary administration is a faster, lower-cost option available under Fla. Stat. § 735.201 when the probate estate, minus property exempt from creditors, is worth $75,000 or less, or when the decedent has been dead for more than 2 years.

Who may serve as personal representative is limited. A Florida resident who is an adult of sound mind, and not a convicted felon, may serve. A nonresident may serve only if related to the decedent, for example a spouse, child, parent, sibling, or other close relative listed in Fla. Stat. § 733.304. A corporate trust company or bank authorized to act in Florida may also serve. The Florida Courts probate self-help resources describe the filings each path requires.

On taxes, Florida is straightforward. The state has no estate tax and no inheritance tax. A Florida estate may still owe federal estate tax, but only when its value exceeds the federal exemption the IRS sets each year, which leaves the large majority of estates untaxed. Income the estate earns during administration can still generate federal income tax, which the personal representative reports separately.

Specific procedures and topics