Florida Estate Planning Laws

Although it may sound like something exclusive, estate planning is for anyone with an estate. If you own assets, such as personal property, real estate, bank accounts, life insurance policies, retirement accounts, or digital assets, you have an estate.

An estate plan is simply a set of instructions, usually in the form of a will or a trust, that describes how you want your assets handled after your death. A will or trust is a legal document that provides your family members and loved ones with your instructions.

Florida has specific laws governing the creation of a valid will or trust, along with intestate succession laws that determine how your assets are handled if you don’t have an estate plan. This article focuses on how to plan ahead with a valid Florida estate plan, what happens if you die without an estate plan, and some state-specific Florida laws to consider.

What Happens to Your Property After You Die?

Unless you have a trust-based estate plan (which is discussed below), your estate will likely go through the probate process when you die. In other words, if you have a will-based estate plan or if you die without an estate plan in place, your estate will go through the probate process.

The process is generally the same for both, with different terminology and varying levels of control. With a will, you name your personal representative and decide how your assets are distributed. If you die without a valid will, known as dying intestate, the state takes charge. Florida has a set of intestacy laws that provide the legal framework for how your estate is handled after your death. The probate court decides who will be your personal representative, and the intestacy laws determine how your assets are distributed.

The Probate Process in the State of Florida

As a general overview, the formal probate process in Florida includes:

A petitioner files with the circuit court in the county where you lived. The probate court appoints a personal representative. If you left a valid will, the person named in it is known as the “executor.” If you died intestate or your will is invalid, the person appointed is known as the “administrator.” Regardless of the title, the personal representative has the following responsibilities:

• Notifying all your estate’s creditors during the 90-day creditor claim period required under Florida law, which begins on the date the notice to creditors is first published
• Gathering, inventorying, and appraising your estate’s assets
• Paying your estate’s outstanding debts, including taxes
• Distributing the remaining property according to your will or Florida intestacy law
• Filing a petition for discharging and closing the estate

There may be additional required tasks, depending on the situation.

Florida’s Intestate Succession Priorities

If you die without a valid will, Florida’s intestacy laws will look all the way to your last spouse’s family to find heirs to your estate. If no relatives of yours or your last spouse exist, your estate will “escheat” (go) to the state of Florida. Otherwise, the process for determining how your estate will be allocated follows the order below:

• Your Surviving Spouse: Your surviving spouse will receive everything if you have no surviving children or if all of your surviving children are shared with your surviving spouse. If you or your surviving spouse has surviving children with someone else, your surviving spouse will get one-half of your estate.
• Your Children: Your estate passes to your children if you have no surviving spouse. They will also get shares not allocated to a surviving spouse. Your children will inherit “per stirpes,” which means that if any of your children die before you, their children will divide their parent’s share of your estate.
• Your Parents: Next, the state will look for a surviving parent. Your estate will be divided equally between your two surviving parents or pass in full if only one parent survives you.
• Your Siblings and Their Children: With no surviving parents, the estate goes to your siblings (brothers and/or sisters). The children of any deceased siblings will inherit per stirpes.
• Your Grandparents, Aunts, and Uncles: If you have no siblings or they die before you with no surviving descendants, your estate is divided in half. One half goes to your father’s side, and one half goes to your mother’s side. On each side, the estate goes first to your grandparents equally (or to the surviving grandparent in full), then to your aunts and uncles and, if they die before you, to their descendants.
• Your Deceased Spouse’s Family: If no relatives on either side of your family exist and your spouse died before you, your estate passes to your spouse’s family. It’s treated as if this spouse had survived your death and then died intestate.
• The State: Your estate has to end up somewhere. If no qualifying related heirs exist or can be identified, your estate escheats to the state of Florida.

Intestacy laws are the state’s best guess of how most people would want their assets distributed. They don’t account for the loved ones in your life who aren’t related to you by blood or marriage, distant relatives you never even knew, or close relatives you had a falling out with. Without an estate plan, worthy charities that you dedicated your life to won’t receive a cent.

Florida’s intestacy laws stand a good chance of not matching the way you want your estate distributed. If you don’t want that to happen, you may want to create an estate plan.

Creating Your Estate Plan

Your Florida estate plan can be will-based or trust-based. Either framework can accomplish most estate-planning goals. This section describes the legal requirements, potential benefits, and potential limitations of each.

Will-Based Estate Plan

Formally known as a last will and testament, a will is the legal document that controls the distribution of your probate estate. Your probate estate is all of the assets held in your name alone without a beneficiary designation or right of survivorship.

The person who creates a will is known as the testator. Under Florida law, a will must meet these requirements to be valid:

• The testator must be of sound mind to make a will and be at least 18 years old or emancipated
• The will must be in writing (not oral)
• The testator must sign the will at the end or direct someone to sign on his or her behalf and in his or her presence
• Two people, in each other’s presence and in the testator’s presence, must witness the testator’s signing or acknowledgment

Though not required, a will may be “self-proving” with statutory form language. The benefit of a self-proving will is that it can be admitted to probate without further proof. A will that is not self-proving requires testimony from a witness, which becomes an issue if the witnesses have died or become incompetent.

Potential Benefits of a Will-Based Estate Plan

A will-based estate plan meets the needs of many people. It is usually less costly to create than a trust-based estate plan, and it doesn’t require administration during the testator’s lifetime. You can name a guardian for any minor children in your will.

Potential Limitations of a Will-Based Estate Plan

The main limitation of a will is that all of your probate assets (assets held in your name alone without a beneficiary designation or right of survivorship) must pass through the Florida probate process. While a smaller estate may qualify for summary administration, formal administration is required when your estate’s non-exempt assets exceed $75,000 or if you’ve been dead for less than two years.

Probate is public, meaning anyone can potentially access the filings to see who is inheriting and how much. It’s a lengthy process that may mean several months or even years will pass before your beneficiaries inherit. Florida statute sets the fees for your personal representative and attorney based on your estate’s value. While a will may be less costly to set up than a trust, it may cost more to administer.

Finally, a will doesn’t provide incapacity planning during your lifetime. This may require additional incapacity planning if the need arises.

Trust-Based Estate Plan

The revocable living trust (RLT) is the framework for a trust-based estate plan. As the settlor (sometimes called the grantor), you create the RLT, transfer your assets into it during your lifetime, and serve as the initial trustee. Under Florida law, the signing requirements for a trust are the same as those for a will. Although your assets now belong to the RLT, you remain in control of them as the trustee.

At your death (or incapacity), your successor trustee steps in to administer the distribution of the trust assets to your beneficiaries. Absent a dispute among beneficiaries or any other challenge to the trust, your funded assets will be administered and distributed according to your wishes without involving the time or expense of probate.

Transferring your assets into the trust is known as “funding” the trust. This is a crucial step in the process. Any assets that aren’t transferred into the trust must go through probate. A pour-over will captures any assets left outside the trust. This legal document is usually paired with an RLT, and your guardian nomination may be a provision in your pour-over will.

Potential Benefits of a Trust-Based Estate Plan

A funded trust usually avoids probate proceedings. This means the distribution of your assets is private. Because your successor trustee steps in if you become incapacitated, an RLT includes some amount of incapacity planning. Some of the most powerful features of an RLT include the ability to put measures in place to protect any spendthrift beneficiaries who might use their distribution unwisely, as well as to protect your beneficiaries’ distributions from creditors.

Potential Limitations of a Trust-Based Estate Plan

Because of its robust planning features, an RLT usually costs more to create up front. Additionally, you must continue to fund the trust during your lifetime as you acquire additional assets. Assets not titled in the trust must pass through probate.

Other Types of Trusts

Certain trusts or subtrusts allow complex planning, such as a Special Needs Trust for minors or persons with disabilities, a Medicaid Asset Protection Trust for benefits planning, and tax-planning strategies such as marital (AB) trusts. As a general rule, trusts created for asset protection purposes must be irrevocable. In addition, a charitable trust is a way to provide ongoing support to a cause you believe in.

Additional Important Legal Documents

A comprehensive estate plan typically includes other estate planning documents.

Durable Power of Attorney

With a durable power of attorney, you can name a trusted person or institution (known as your “agent”) to step in your place and manage your financial affairs. Even if your estate plan is trust-based, a durable power of attorney is an important part of a comprehensive estate plan. This is because while an RLT provides some built-in incapacity planning related to your trust assets, your successor trustee’s authority is limited to the trust assets. This could leave a gap in authority over your financial affairs.

The state of Florida does not provide a statutory form for a durable power of attorney. Unlike some jurisdictions, Florida no longer recognizes a springing power of attorney. Instead, the durable power of attorney is effective at execution.

Durability language is essential so that the authority survives your incapacity. Without it, your incapacity would terminate the power of attorney. For a power of attorney to be durable in Florida, it must include language such as: “this durable power of attorney is not terminated by subsequent incapacity of the principal.”A durable power of attorney for financial matters is an important tool for incapacity planning.

Health Care Surrogate Designation and Living Will

Together, your living will and health care surrogate designation direct and empower medical decision-making on your behalf. Florida law sets out the requirements for making a living will, and a sample living will is provided in the Florida Statutes. Florida law provides a Designation of Health Care Surrogate statutory form that you use to name who will manage your health care decisions if you become incapacitated.

These important legal documents ensure your medical care is managed in accordance with your wishes.

Guardianship Nominations

Parents may nominate a guardian for their minor children in their will, in a pour-over will if their estate plan is trust-based, or in a standalone document. The nomination is advisory only. In other words, the court will give a parental nomination great weight, but it must follow the best interests of the child.

Florida-Specific Estate Planning Considerations

Several key features of state law make Florida particularly favorable for estate planning. These include:

• Taxes: Florida does not impose a state income tax, an estate tax, or an inheritance tax. This keeps your estate from being devalued as it passes to your survivors.
• Homestead Protections: Florida’s state constitution provides strong homestead protections. These limit a creditor’s ability to force a sale of your primary residence, but also restrict how you can leave it to your beneficiaries. For this reason, married homeowners and homeowners with blended families must plan carefully.
• Asset Protection: Florida law includes robust asset protection features. These include a broadly protective and effectively unlimited in value homestead exemption subject to certain exceptions, tenancy by the entirety for married couples (meaning a creditor of one spouse generally cannot reach the couple’s property held in tenancy by the entirety), and strong statutory protections for annuities and life insurance cash values.
• Elective Share: Under Florida law, a surviving spouse is entitled to an elective share of 30% of the estate, no matter what the will provides. Estate plans for married couples should consider this right.

Planning an estate to take advantage of these provisions can be difficult. If you’re unsure about whether you’re getting maximum relief, consider speaking with a Florida estate planning attorney.

Uniform Disposition of Community Property Act

A relatively new 2021 law protects the character of assets acquired as community property in another state when the couple moves to Florida. Although Florida is not a community property state, it will continue to recognize and preserve each spouse’s one-half ownership interest in property that was earned or acquired as community property in another state.

For estate planning purposes, this allows married couples to keep the tax advantages and flexible inheritance control of community property while living in Florida. It also allows the potential for a more strategic distribution of assets between a surviving spouse and other beneficiaries.

Start Working Toward Peace of Mind Today

Tomorrow isn’t promised. If you want the peace of mind that comes with planning for your family and loved ones’ futures, today is the day to start the estate planning journey.

DIY Estate Planning

For many people, a simple will is enough to achieve their goals. Although Florida doesn’t offer a statutory will form as some states do, a do-it-yourself online will may suit your needs. Learn more at FindLaw’s How To Make a Will in Florida to explore your options. Florida also provides some statutory forms for some other legal documents that make up a comprehensive estate plan, as mentioned above.

Experienced Estate Planning Attorney

If you have a large estate or a complex family situation, you may prefer to consult an attorney with experience in the Florida estate planning laws for legal advice. An estate planning lawyer can also ensure your estate plan is cohesive and all of the legal documents work together to express and fulfill your wishes. Find a Florida estate lawyer close to you with experience in wills and trusts. A lawyer spends time getting to know your unique situation and works with you to create an estate plan that reflects your goals.