Estate planning

Most people picture an estate plan as a will: one document, read aloud in a lawyer's office after a funeral. In practice a plan is a small set of documents, and most of them matter while you are still alive. That is usually the part that surprises people, and it is also the part that does the most good.

An estate plan does two jobs. It decides where your property goes, and it decides who acts for you when you cannot act for yourself. The second job is the one that gets used first, and often the one that gets skipped.

Florida law also adds features you will not find everywhere: constitutional homestead protection, a spousal elective share, restrictions on who can serve as personal representative, and a rule that makes no-contest clauses unenforceable. A plan drafted for another state, or drafted from an online template, frequently collides with one of them.

What a plan is actually for

People usually come to estate planning for one of three reasons: a birth, a diagnosis, or a death in someone else's family that showed them what a mess looks like.

Whatever brings you, the work does four things:

• Directs your property to the people and causes you choose, in the proportions you choose.
• Names decision-makers for your finances, your medical care and your minor children.
• Reduces cost and delay for the people who have to administer what you leave.
• Removes ambiguity, which is where family disputes grow.

That last one deserves emphasis. Most estate litigation is not about greed. It is about siblings who each believe they know what a parent wanted, with nothing in writing to settle it. Grief makes reasonable people behave in ways nobody predicted. A clear plan is the cheapest insurance against that, and its value is not measured by the size of the estate.

What happens with no plan at all

Die without a will in Florida and the intestacy statutes decide who inherits. The scheme is rigid and takes no account of your relationships.

In broad terms, a surviving spouse takes the entire intestate estate where all descendants are shared with that spouse and the spouse has no other descendants. Where there are descendants from another relationship, on either side, the estate is divided between the spouse and the descendants. With no spouse, the estate passes to descendants, then to parents, then to siblings, and outward through the family tree.

Notice who is absent from that list. An unmarried partner of thirty years takes nothing. A stepchild you raised but never adopted takes nothing. A close friend, a charity, a godchild: nothing. Meanwhile a relative you have not spoken to in decades may inherit.

Intestacy also leaves the court to appoint a personal representative, and it says nothing about who raises your minor children, which is decided separately and without your input on the record.

The will

A will is your instruction to the probate court. It does four main things: it says who receives your property, it names a personal representative to administer the estate, it can name a guardian for minor children, and it can waive the bond a personal representative would otherwise post.

What a will does not do is avoid probate. A will is the map the probate court follows. It is not a way around the courthouse. People are regularly surprised by this, having been told that "having a will" would keep the family out of court.

A few features are worth knowing:

• Specific gifts leave a named item or sum to a named person. If the item no longer exists at death, the gift generally fails, which is worth thinking about when leaving a particular vehicle or account.
• The residuary clause catches everything not otherwise disposed of. It is the most important clause in most wills and the one most often given least thought.
• Per stirpes or per capita language decides what happens if a beneficiary dies before you. The difference matters enormously to grandchildren.
• A pour-over will is used alongside a trust, directing anything that was not transferred into the trust during life to pour into it at death.

Signing a will in Florida

Florida's execution formalities are strict, and a will that fails them fails completely.

The will must be in writing and signed by the testator at the end, in the presence of two attesting witnesses, who must sign in the presence of the testator and of each other. Handwritten wills that are not executed with these formalities, sometimes called holographic wills, are not valid in Florida even if they would be valid in the state where they were written. Nuncupative, meaning oral, wills are not recognised at all.

Two additions are worth having:

• A self-proving affidavit, signed before a notary at the same time, allows the will to be admitted without tracking down the witnesses years later. It costs nothing extra at signing and saves real trouble afterwards.
• Florida permits electronic wills executed under its statutory framework, including remote online notarisation with specific requirements. It is available, and it is unforgiving of technical error.

Storage matters too. Florida requires the original will to be deposited with the clerk of court after death. If the original cannot be found and was last known to be in the testator's possession, a presumption can arise that it was revoked, and overcoming that presumption is difficult. Keep the original somewhere safe and make sure the person who will need it knows where that is.

The revocable living trust

A revocable living trust is an arrangement you create during life, usually naming yourself as trustee and beneficiary while you are able. You transfer assets into it, you keep full control, and you can change or revoke it whenever you like. On incapacity or death, the successor trustee you named takes over and distributes according to the terms.

The advantages that matter in practice:

• Avoiding probate for assets held in the trust, which means no court file, no formal administration and generally faster distribution.
• Privacy. Probate is a public record. A trust is not. For families who would rather not publish their affairs, this alone is often the reason.
• Incapacity planning. The successor trustee can step in without a court proceeding, which is smoother than relying on a power of attorney alone.
• Control over timing. You can stagger distributions by age, condition them on circumstances, or hold assets for a beneficiary who should not receive a lump sum.
• Out-of-state property can be brought into one administration rather than triggering a separate probate in another state.

What a revocable trust does not do is protect assets from your own creditors during life, or reduce income tax. It is a management and transfer tool, not a shield. Be sceptical of anyone selling it as both.

Funding the trust

A trust controls only what it owns. This is the single most common failure in estate planning: a properly drafted trust, signed and stored, and never funded.

Funding means retitling assets into the name of the trust, or naming the trust as beneficiary where appropriate. That typically includes:

• Real property, by deed.
• Bank and brokerage accounts, by retitling.
• Business interests, subject to the operating or partnership agreement.
• Certain personal property, by assignment.

Retirement accounts are usually a different matter. Naming a trust as beneficiary of an IRA or 401(k) has significant tax consequences and should only be done deliberately, with the distribution rules in mind. In many families the right answer is to name individuals directly and use the trust for other assets.

Funding is also not a one-off task. Accounts opened later, properties bought later and businesses formed later all need attention. A trust reviewed every few years catches the drift.

The durable power of attorney

A durable power of attorney names an agent to act on your financial and legal affairs. Durable means it survives your incapacity, which is precisely when it is needed.

Florida's statute is more demanding than most. Two features catch people out:

• No springing powers. Florida does not permit a power of attorney that becomes effective only on a later determination of incapacity. It is effective when signed, which makes the choice of agent a serious one.
• Enumerated powers must be separately initialled. Certain significant authorities, including creating or amending a trust, making gifts, changing beneficiary designations, disclaiming property and creating rights of survivorship, must be specifically granted and separately signed or initialled by the principal. A general form that omits them leaves the agent unable to do exactly the things a family needs most.

Without a valid power of attorney, a family facing incapacity is usually left applying to court for guardianship: slower, public, expensive and supervised. This document is the cheapest thing in the plan and the one that most often prevents that outcome.

Health care documents

Three documents cover medical decision-making, and they do different jobs.

Designation of health care surrogate

Names the person who makes medical decisions if you cannot, and can also authorise them to receive your medical information. Florida permits a designation that allows the surrogate to access information immediately, which avoids arguments with providers about whether you are incapacitated yet.

Living will

Records your wishes about life-prolonging procedures if you have a terminal condition, an end-stage condition or are in a persistent vegetative state. Its purpose is not only to direct physicians. It is to relieve your family of having to guess, and of carrying the decision afterwards.

HIPAA authorisation

Allows named people to receive your protected health information. Often folded into the surrogate designation, but worth confirming rather than assuming.

Two practical points. Give copies to the people named, not just to the file. And a document nobody can produce at 2am in an emergency room is doing no work at all.

Pre-need guardian designation

Florida allows you to name in advance the person you would want appointed as your guardian if a court later determines you are incapacitated. You can also name a pre-need guardian for your minor children in the event of your own incapacity or death.

The declaration is not absolutely binding, but a court gives it considerable weight and it shifts the starting point. In families where the likely candidates do not agree with each other, it is a quiet and effective way to prevent the fight before it starts.

Beneficiary designations

This is the part of the plan people forget, and it frequently overrides everything else.

Retirement accounts, life insurance, annuities and payable-on-death or transfer-on-death accounts pass by beneficiary designation. They do not pass under your will. A designation completed years ago, naming a former spouse or someone who has since died, will generally control regardless of what your will says.

Reviewing those forms is often the highest-value hour in the whole exercise. The specific things worth checking:

• Primary and contingent beneficiaries are both named and both current.
• No minor is named outright as a beneficiary, which forces a court process to receive the funds.
• Percentages total correctly and reflect the plan as a whole.
• The employer plan and the personal account have both been checked, since people usually remember one and forget the other.

Florida homestead

Homestead in Florida is not a single concept. It is three, and confusing them causes real problems.

Creditor protection. The Florida Constitution protects homestead property from forced sale by most creditors, subject to acreage limits and certain exceptions such as mortgages, taxes and mechanics liens. The protection is unusually strong and it is one reason people move here.

Tax exemption. A separate benefit reducing assessed value for property tax purposes, with the Save Our Homes assessment cap. Applying for it involves the county property appraiser and has nothing to do with your will.

Restrictions on devise. This is the one that reshapes estate plans. If the owner is survived by a spouse or a minor child, the Florida Constitution restricts how homestead property may be left. An attempt to devise homestead contrary to those restrictions does not simply fail quietly, it produces a statutory result that is often not what anybody wanted, typically a life estate in the surviving spouse with a remainder to descendants, unless a permitted election is made within the statutory period.

The consequences ripple. A surviving spouse holding a life estate is responsible for certain expenses, cannot sell without the remainder holders, and may be sitting in a house nobody can practically deal with. There are ways to plan around this, including spousal waivers and particular deed structures, but they must be done deliberately and in advance.

Spousal rights and the elective share

Florida gives a surviving spouse rights that cannot be defeated simply by leaving them out of a will.

The principal one is the elective share: a surviving spouse may elect to take a percentage of the elective estate, set by statute at thirty per cent. The elective estate is defined broadly and reaches well beyond probate assets, capturing certain trust property, jointly held property, payable-on-death accounts, and some transfers made during life. It is deliberately difficult to avoid by rearranging ownership.

Other protections include a homestead interest, exempt property, and a family allowance during administration. A spouse omitted from a will executed before the marriage may also take an intestate share as a pretermitted spouse, unless the will or a marital agreement provides otherwise.

These rights can be waived, but only by a valid written agreement, and the requirements for a valid waiver are specific. For couples entering second marriages with children from earlier relationships, addressing this at the outset is far less painful than litigating it later.

Children, guardianship and minors

For parents of young children, the guardian nomination is usually the most important line in the will. Without it, a court decides among competing relatives with no direction from you.

Nominate a primary and at least one alternate, and talk to them first. Consider practicalities that sentiment tends to obscure: where they live, whether the children would change schools, their own family circumstances, their age and health, and whether the person best suited to raise your children is also the right person to manage money for them. Those two roles can and often should be separated.

On money for minors, leaving assets outright to a child is rarely wise. Property passing to a minor generally requires a court-supervised guardianship of the property, and whatever remains is handed over in full at eighteen. A trust, or at minimum a properly structured custodial arrangement, avoids both problems and lets you set an age at which distributions actually make sense.

Blended families

Second marriages with children from prior relationships produce the most estate litigation, and almost always for the same structural reason: an arrangement that leaves everything to the surviving spouse, in the expectation that they will pass it on to the first spouse's children.

That expectation is unenforceable once you are gone. The survivor can change their own will, remarry, spend the assets, or be influenced by their own children. None of that requires bad faith. It simply reflects that they now own the property.

Structures that address it honestly include trusts that provide for the surviving spouse during life with a fixed remainder to your children, life insurance used to provide for one group while the estate passes to another, and clear division of specific assets rather than percentages of everything. Marital agreements and elective share waivers are frequently part of the picture.

The conversation is uncomfortable. It is considerably less uncomfortable than the litigation that follows when it is avoided.

Planning for a disabled beneficiary

If someone in your family receives needs-based public benefits, an outright inheritance can do direct harm.

Supplemental Security Income and Medicaid are means-tested. A lump sum can disqualify a beneficiary until it is spent down, which can mean losing not only the cash benefit but the medical coverage attached to it. Social Security Disability Insurance and Medicare are not means-tested, so an inheritance does not affect them, but many people receive a combination and the distinction is easy to get wrong.

A properly drafted special needs trust, sometimes called a supplemental needs trust, allows funds to be held for the beneficiary's benefit without counting as their resource, and used for things public benefits do not cover. The drafting requirements are technical and the consequences of getting them wrong are serious.

Because this firm also handles Social Security disability claims, the interaction between an inheritance and a family member's benefits is familiar ground rather than an afterthought.

Probate in Florida

Probate is the court process that transfers a decedent's individually owned assets, pays valid debts and closes out the estate. Florida has more than one track.

Formal administration

The standard process, used for most estates. A personal representative is appointed, letters of administration are issued, creditors are notified and given a statutory period to file claims, an inventory is filed, debts and taxes are addressed, and the estate is distributed and closed. It generally requires an attorney.

Summary administration

A shortened process available where the value of the qualifying estate is below the statutory threshold, or where the death occurred more than two years ago. There is no personal representative appointed in the usual sense, and the court enters an order distributing the assets. Faster and cheaper where it is available.

Disposition without administration

A very limited procedure for small estates where assets do not exceed the cost of final expenses and certain medical bills.

One Florida quirk worth knowing early: who may serve as personal representative is restricted. A non-resident of Florida generally cannot serve unless they fall within a defined class of relatives, which includes a spouse, a sibling, a parent, a child or certain other close relations, or their spouses. Naming an out-of-state friend or a distant relative as personal representative is a common error in wills drafted elsewhere, and it is discovered at the worst possible moment.

Ways property passes outside probate

Not everything goes through probate, and a good plan uses that deliberately rather than accidentally.

• Trust assets pass under the trust.
• Beneficiary designations control retirement accounts, life insurance and annuities.
• Payable-on-death and transfer-on-death registrations move bank and brokerage accounts directly.
• Joint ownership with right of survivorship, and tenancy by the entirety between spouses, passes to the survivor by operation of law.
• Enhanced life estate deeds, widely known in Florida as Lady Bird deeds, let an owner keep full control and the right to sell during life while the property passes automatically at death. They are a useful tool, though not right in every situation, particularly where homestead devise restrictions or Medicaid planning are in play.

The risk with these tools is using them piecemeal. Adding a child as a joint owner to "avoid probate" can create gift tax questions, expose the property to that child's creditors and divorce, and unintentionally disinherit your other children. The mechanism is simple; the consequences are not.

Snowbirds and out-of-state owners

South Florida is full of people with a foot in two states, and the plan needs to reflect that.

If you are a Florida resident who owns property in another state, that property will generally require an ancillary probate there unless it is held in a trust or passes by another non-probate mechanism. Bringing it into a revocable trust is often the cleanest solution.

If you are a resident elsewhere who owns Florida property, the reverse applies: your home state probate will not transfer the Florida real estate, and an ancillary administration here will be needed. Again, a trust usually avoids it.

Residency itself carries consequences beyond probate, including homestead exemption eligibility, income tax in the state you left, and which state's law governs your documents. If you have recently moved to Florida, having your existing documents reviewed against Florida law is worth doing rather than assuming they carried over intact. Where affairs cross an international border as well, the international tax side needs to be considered alongside.

Tax, briefly

Florida imposes no state estate tax and no state inheritance tax. It also has no state income tax. For most families that removes an entire layer of complexity.

The federal estate tax applies only above an exemption amount that is indexed and has changed substantially over the years, and it is scheduled to change again. Most estates fall well below it. For those that do not, planning is a specialised exercise involving lifetime gifting, portability of a deceased spouse's unused exemption, and irrevocable structures.

Two points apply to almost everyone regardless of size. Assets included in your estate generally receive a stepped-up basis at death, which can matter more to your family than any estate tax planning, and which is a reason to be careful about giving away appreciated property during life. And retirement accounts carry their own distribution rules for beneficiaries that can create a significant income tax bill if inherited without thought.

Contests and no-contest clauses

Wills and trusts are challenged on limited grounds: lack of capacity at the time of signing, undue influence, fraud, forgery, mistake, or failure to comply with execution formalities.

Undue influence claims are the most common in Florida, and they often arise where a beneficiary in a position of trust was actively involved in procuring the document. Florida recognises a presumption of undue influence in defined circumstances, which shifts the burden and makes the involvement of a benefiting party in the drafting process something to avoid scrupulously.

One point surprises nearly everyone: in Florida, a no-contest clause is unenforceable. A provision purporting to penalise a beneficiary for challenging a will or trust is void by statute. Clauses of that kind appear routinely in documents drafted in other states and in online templates, and people rely on them believing they are protected. They are not.

What actually reduces the risk of a contest is different and less dramatic: careful execution, contemporaneous evidence of capacity where there is any doubt, independence in the drafting process, explaining an unequal distribution rather than leaving it to be discovered, and in some cases a trust structure with a clear record. A letter of explanation, kept separate from the will, can do more good than any penalty clause.

Choosing a trustee and personal representative

These are jobs, not honours, and treating them as honours is a frequent mistake.

A personal representative gathers assets, deals with creditors, files tax returns, keeps records and distributes the estate under court supervision. A trustee manages trust property, invests it, keeps accounts, communicates with beneficiaries and makes distribution decisions, potentially for many years.

What actually matters in the choice: trustworthiness, organisation, responsiveness, the ability to remain even-handed among beneficiaries, and willingness to serve. Geography and the Florida residency restriction matter for a personal representative. Longevity matters for a trustee who may serve for decades, which is why naming successors is essential.

A professional trustee, such as a bank or trust company, brings continuity and neutrality at a cost, and is worth considering where the assets are substantial, the term is long, or family dynamics are difficult. Naming the eldest child by default, because they are the eldest, is how a great many trusts end up in litigation.

Digital assets and the practical file

Florida has adopted a version of the Revised Uniform Fiduciary Access to Digital Assets Act, which allows you to authorise a fiduciary to access digital accounts, subject to the terms of the provider and any online tool the provider offers. Language addressing digital assets belongs in modern documents.

Separately from the legal documents, the practical file is what your family will actually need in the first fortnight:

• Where the original will and trust are kept.
• A list of accounts and institutions, without passwords in the same place.
• Insurance policies, including any employer-provided life cover people forget they have.
• Deeds, titles and mortgage information.
• Contact details for your attorney, accountant and financial adviser.
• Funeral or burial preferences, which do not belong in a will that may not be read for weeks.

When to review a plan

A plan is a snapshot of a life at a moment. Review it after any of the following:

• Marriage, divorce or the death of a spouse.
• The birth or adoption of a child or grandchild.
• A move to or from Florida.
• A significant change in assets, including selling a business or receiving an inheritance.
• A beneficiary developing a disability, an addiction or creditor problems.
• The death, decline or falling-out of a named personal representative, trustee, agent or guardian.
• A change in the law that affects your structure.

Absent any of those, every three to five years is a reasonable rhythm. The most common defect in an old plan is not that it was badly drafted. It is that it accurately reflects a family that no longer exists.

What to do next

A first conversation does not require you to have decided anything. It is usually enough to know roughly what you own, roughly who you would want to receive it, and who you would trust to act for you.

Bendel Law prepares wills, revocable trusts, powers of attorney, health care designations, living wills and pre-need guardian declarations for Florida families, and advises on homestead, spousal rights, blended family structures and planning around a beneficiary who receives disability benefits. The aim is a plan you understand, that your family can actually administer, and that says what you meant it to say.

This page is general information about Florida estate planning. It is not legal advice for your situation, statutory thresholds and tax figures change, and reading this page does not create an attorney-client relationship.