Estate planning involves deciding who should manage your affairs if you become unable to act, how your property should pass at death, and what legal documents are needed to carry out those decisions.
Florida Consumer Lawyers helps clients understand and prepare estate-planning documents such as wills, durable powers of attorney, health care surrogate designations, living wills, and related planning documents.
The answers below address some of the most common Florida estate-planning questions.
What Is Estate Planning?
Estate planning is the process of creating legal instructions for how important personal, financial, and healthcare decisions should be handled during your lifetime and after your death.
A Florida estate plan may address:
- Who receives your probate property after death;
- Who can manage financial matters if you cannot;
- Who may make healthcare decisions for you;
- Your wishes regarding certain end-of-life treatment;
- Who you would prefer to care for minor children; and
- Whether probate or guardianship issues can be reduced through advance planning.
The right documents depend on your family, assets, health, and goals.
What Documents Can Be Part of a Florida Estate Plan?
Depending on the client's needs, an estate plan may include:
- A last will and testament;
- A durable power of attorney;
- A designation of health care surrogate;
- A living will;
- Appropriate beneficiary designations;
- Trust planning when appropriate;
- Guardianship nominations for minor children; and
- Other documents needed to coordinate the overall plan.
A Florida Do Not Resuscitate Order, or DNRO, is a separate medical order and should not be confused with a living will or health care surrogate designation.
What Is Probate?
Probate is the court-supervised process used to identify and gather a deceased person's probate assets, address valid debts and expenses, and distribute the remaining property to the people legally entitled to receive it.
Not every asset owned by a deceased person necessarily goes through probate.
Learn more about Florida probate →
What Happens If I Die Without a Will in Florida?
Dying without a valid will is called dying intestate.
Florida's intestacy laws then determine who receives your probate estate. The result depends on your surviving family members, including whether you leave a spouse, descendants, parents, siblings, or other relatives.
Dying without a will does not mean the State of Florida automatically receives your property.
Should I Update My Will After Moving to Florida?
A move to Florida is a good reason to have an existing estate plan reviewed.
A will validly executed under another state's law may still be recognized in Florida in many circumstances, but Florida law can affect issues such as homestead, spousal rights, personal representative qualifications, execution formalities, and other parts of the estate plan.
A Florida review can help determine whether the existing documents should remain in place or be updated.
Do I Need a Lawyer to Make a Will in Florida?
Florida law does not require an attorney to draft every will.
However, a will must satisfy Florida's legal requirements to be valid, and mistakes involving execution, beneficiaries, homestead, family circumstances, or outdated documents can create problems later.
An attorney can help make sure the document reflects your intentions and fits with the rest of your estate plan.
Can Someone With Alzheimer's Disease or Dementia Make a Will?
Possibly.
A diagnosis of Alzheimer's disease, dementia, or another cognitive condition does not automatically mean a person lacks testamentary capacity.
The key question is whether the person has sufficient capacity when the will is executed.
When capacity is a concern, the issue should be addressed before signing so the client's understanding and wishes can be carefully evaluated and documented.
Do I Need a Will If I Have No Children?
A will can still be important even if you do not have children.
Without a valid will, Florida intestacy law determines who receives your probate estate. Depending on your family situation, that may include a spouse, parents, siblings, or more remote relatives.
A will allows you to choose beneficiaries rather than relying solely on the default intestacy rules.
What Happens to My Will After Divorce in Florida?
Divorce can significantly affect an existing Florida will.
Under Florida law, provisions of a will that affect a former spouse are generally void after the marriage is legally dissolved, unless an exception applies. The will is generally interpreted as though the former spouse died at the time of the dissolution.
Even so, divorce is an important reason to review and update the entire estate plan because beneficiary designations, powers of attorney, healthcare directives, trusts, and other documents may also need attention.
Should I Update My Estate Plan After Having or Adopting a Child?
Yes.
A new child can affect both your will and your broader estate plan. Florida law contains protections for certain children born or adopted after a will is made, but relying on those default rules is not a substitute for updating the plan.
A review should consider:
- Whether the child is properly included in the estate plan;
- Guardian nominations;
- Beneficiary designations;
- Life insurance;
- How assets should be managed for a minor; and
- Whether the existing will still reflects your wishes.
What Is the Difference Between a Will and a Living Will?
A last will and testament primarily addresses what happens to probate property after death and may also nominate a personal representative and a preferred guardian for minor children.
A living will is a healthcare advance directive that expresses a person's wishes regarding life-prolonging procedures under specified medical circumstances.
A living will does not distribute property after death, and a last will does not serve as a substitute for healthcare instructions.
Is a Living Will the Same as a Health Care Surrogate Designation?
No.
A living will expresses wishes concerning certain end-of-life treatment.
A designation of health care surrogate names someone who may make healthcare decisions or receive health information on your behalf, depending on the authority granted in the document. Florida law requires a written surrogate designation to be signed in the presence of two adult witnesses.
Many estate plans include both documents because they serve different purposes.
What Does a Durable Power of Attorney Do?
A durable power of attorney allows you to authorize another person to handle specified financial and legal matters on your behalf.
Depending on the authority granted, an agent may be able to deal with matters such as banking, property, contracts, insurance, taxes, and other financial affairs.
A durable power of attorney is different from a health care surrogate designation and generally ends at death.
Does a Florida Durable Power of Attorney Begin Only After Incapacity?
Generally, no.
Under current Florida law, most newly created powers of attorney become effective when executed rather than “springing” into effect only after incapacity.
That makes selection of the agent especially important.
Does a Power of Attorney Replace a Will?
No.
A power of attorney generally authorizes someone to act for you during your lifetime. That authority ends at death.
A will operates after death and directs the disposition of probate property, subject to Florida law.
Many clients need both because the documents solve different problems.
Does a Power of Attorney Replace a Will?
No.
A power of attorney generally authorizes someone to act for you during your lifetime. That authority ends at death.
A will operates after death and directs the disposition of probate property, subject to Florida law.
Many clients need both because the documents solve different problems.
Can Estate Planning Help Avoid Guardianship?
Sometimes.
Documents such as a durable power of attorney and health care surrogate designation can provide legal authority for trusted people to make decisions if you later become unable to act.
Those documents can reduce the likelihood that guardianship will be necessary, but they do not guarantee that a guardianship proceeding can always be avoided.
Florida courts must consider less restrictive alternatives when determining whether guardianship is necessary.
Can I Name a Guardian for My Minor Child in My Will?
You can use a Florida will to nominate the person you would prefer to serve as guardian if a guardianship later becomes necessary.
The nomination is important, but the court ultimately makes the appointment under Florida law and considers the child's best interests.
When Should I Review My Estate Plan?
Consider reviewing your estate plan after major life changes such as:
- Marriage;
- Divorce;
- Birth or adoption of a child;
- Death of a spouse, beneficiary, or chosen agent;
- Moving to Florida;
- Significant changes in assets;
- A major health change;
- Changes in family relationships; or
- A substantial change in your wishes.
Even without a major event, periodic review can help identify outdated names, addresses, beneficiary designations, and documents.
What Is a Trust?
A trust is a legal arrangement in which a trustee holds or manages property for one or more beneficiaries according to the terms of the trust.
Trusts can serve different purposes, including managing property during life, controlling how assets are distributed after death, providing for minors or other beneficiaries, and in some cases reducing the amount of property that must pass through probate.
Can a Trust Help Avoid Probate?
Often, but only for property that has actually been transferred to or otherwise made payable to the trust.
Creating a trust by itself does not automatically remove every asset from probate. Ownership, beneficiary designations, and how the estate plan is funded all matter.
A properly coordinated trust can allow certain assets to be administered under the trust rather than through the probate estate.
Can I Have Both a Will and a Trust?
Yes.
Wills and trusts can work together as part of the same estate plan.
A trust may control assets held in or payable to the trust, while a will can address probate property and other matters such as nominating a personal representative or preferred guardian for minor children.
The important issue is making sure the documents and asset ownership are coordinated.
Are Trusts Only for Wealthy Families?
No.
Trusts can be useful in estates of many different sizes. Whether one makes sense depends more on the client's goals and circumstances than on a particular net worth.
A trust may be considered when someone wants to:
- Manage property for minor beneficiaries;
- Control the timing of distributions;
- Provide ongoing management for a beneficiary;
- Coordinate property that should pass outside probate; or
- Address other family or asset-management concerns.
Not every estate needs a trust.
What Happens to Jointly Owned Property When One Owner Dies?
It depends on how the property is titled.
Some forms of joint ownership include a right of survivorship, allowing the surviving owner to receive the deceased owner's interest outside probate. Other forms of co-ownership do not operate the same way.
Florida law also recognizes tenancy by the entirety for qualifying property owned by married couples.
The deed, account agreement, or other ownership document should be reviewed rather than assuming that all jointly owned property automatically passes to the survivor.
Do Beneficiary Designations Override My Will?
Often, yes.
Assets such as life insurance, retirement accounts, payable-on-death accounts, and certain transfer-on-death assets can pass according to a valid beneficiary designation rather than under the terms of a will.
Florida law recognizes beneficiary designations as a form of nonprobate transfer.
That is why beneficiary designations should be reviewed as part of the overall estate plan rather than treated separately from the will.
Does My Will Control All of My Property?
No.
A will generally controls property that becomes part of the probate estate.
Other assets may pass outside probate because of:
- Beneficiary designations;
- Rights of survivorship;
- Trust ownership; or
- Other transfer arrangements.
Estate planning should therefore coordinate the will with how assets are actually titled and designated.
How Can I Plan for a Child or Beneficiary With Special Needs?
Planning for a beneficiary with disabilities may require additional care because an outright inheritance can affect financial management and, in some situations, eligibility for means-tested public benefits.
Depending on the circumstances, planning may involve:
- A properly structured trust;
- Selection of an appropriate trustee;
- Coordinating beneficiary designations;
- Planning how assets will be managed over time; and
- Evaluating whether any decision-making support or guardianship arrangement is actually necessary.
Guardianship should not be assumed simply because a person has a disability. Less restrictive alternatives and the individual's actual abilities should be considered.
Can I Include My Pet in My Estate Plan?
Yes.
An estate plan can identify who should care for a pet and provide instructions or financial arrangements for the pet's care.
The appropriate method depends on the circumstances and may involve provisions in a will or a trust designed for the care of an animal.
Because a pet cannot receive property directly like a human beneficiary, the plan should identify the person or arrangement responsible for carrying out those instructions.
What Assets Usually Go Through Probate?
Probate generally applies to property owned by the decedent that does not already have another effective method of transfer at death.
Examples can include:
- Solely owned bank or investment accounts;
- Certain real estate;
- Personal property;
- Assets payable to the estate; and
- Other property without a valid survivorship or beneficiary arrangement.
Whether a particular asset requires probate depends on how it was owned and whether a valid transfer mechanism exists.
Learn more about Florida Probate →
What Assets May Pass Outside Probate?
Depending on how they are structured, nonprobate assets may include:
- Life insurance payable directly to a beneficiary;
- Retirement accounts with valid beneficiary designations;
- Payable-on-death or transfer-on-death assets;
- Certain jointly owned property with survivorship rights; and
- Property held in a trust.
Florida statutes expressly recognize beneficiary-designation and survivorship transfers in a number of contexts.
Why Should My Will, Beneficiary Designations, and Account Ownership Be Reviewed Together?
Because different assets can transfer under different legal documents.
A well-drafted will does not fix an outdated beneficiary designation or change an account that passes by survivorship.
Reviewing the documents together helps reduce conflicts between the estate plan and the way property is actually titled.