Estate Planning in Florida

Married with children (same marriage)

If all descendants are also descendants of the surviving spouse and the spouse has no other descendants, the surviving spouse inherits the entire intestate estate.

Married with children from a prior relationship

If any descendant is not a descendant of the surviving spouse, the spouse receives one-half of the intestate estate and the descendants receive the other half. This also applies if the surviving spouse has descendants who are not descendants of the decedent — the 50/50 split is triggered by step-children on either side.

Married, no children

The surviving spouse inherits the entire intestate estate.

Single with children

Descendants inherit the entire estate equally, per stirpes. If a child predeceased the decedent, that child's share passes to their own descendants.

Single, no children

Parents inherit equally. If only one parent survives, that parent inherits everything. If neither parent survives, siblings inherit equally, with deceased siblings' shares passing to their descendants per stirpes.

What makes a will valid

A will must be in writing, signed by the testator at the end of the document, and attested by two witnesses who sign in the presence of each other and the testator. The testator must be at least 18 (or an emancipated minor) and of sound mind.

What people think

That a handwritten will is valid in Florida, that notarization alone makes a will valid, or that a will made in another state automatically works in Florida.

What actually happens

Florida does not recognize holographic wills at all — a handwritten will without witnesses is void. Notarization alone does not validate a will. And while Florida does recognize wills validly executed in other states, the execution requirements of that other state must have been met. People who move to Florida from states that allow holographic wills are especially at risk.

Common failure

Witnesses not signing in each other's presence, the testator not signing at the end of the document, or using a holographic will from another state. Florida's execution requirements are among the strictest in the country.

When a trust is better

Florida's probate process is more expensive and time-consuming than many states. Trusts are commonly used to avoid probate, especially by retirees with property in multiple states. A revocable living trust paired with a pour-over will is the standard Florida estate planning combination for anyone with real property.

Execution checklist

1. Sign the will at the end of the document — not in the margins or on a separate page
2. Sign in the presence of two attesting witnesses
3. Both witnesses must sign in the presence of each other AND the testator
4. Execute a self-proving affidavit (notarized) at the same time — this simplifies probate
5. Store the original securely — Florida requires the original will for probate

What it does

Grants authority to a named agent to manage financial and legal affairs on your behalf.

Key rule

Florida requires both two witnesses AND notarization for a valid durable power of attorney. This is stricter than most states, which require one or the other but not both. The POA must include specific durability language to remain effective during incapacity.

Real-world friction

Third parties (banks, brokerages, title companies) in Florida sometimes reject POAs that are more than a few years old, even though Florida law does not set an expiration on durable POAs. The statute provides remedies for unreasonable refusal, but enforcing that requires legal action during a time when you need immediate access.

Common mistake

Using a POA form from another state that doesn't meet Florida's dual witness-plus-notarization requirement. Also common: not specifying whether the POA is effective immediately or only upon incapacity (a 'springing' POA).

What it covers

Florida has two separate documents: a Living Will (your instructions for end-of-life care) and a Healthcare Surrogate Designation (who makes medical decisions for you). You should have both.

What's different

Florida uses the term 'surrogate' rather than 'agent' or 'proxy.' The surrogate designation is legally distinct from the living will. Additionally, at least one of the two required witnesses cannot be a spouse or blood relative — this catches many people who assume any two adults will suffice.

Execution requirements

Two witnesses required. At least one witness cannot be a spouse or blood relative of the principal. The surrogate named in the document cannot serve as a witness. Notarization is not required but is recommended.

Common misunderstanding

Confusing a living will with a last will and testament — they are completely different documents. The living will governs medical treatment during incapacity; the last will governs property distribution after death. Also: assuming a financial POA gives your agent authority over medical decisions. It does not.

When required

When assets are held solely in the decedent's name without a beneficiary designation, transfer-on-death designation, or joint ownership with right of survivorship. Homestead property bypasses probate entirely.

What makes Florida different

Florida probate is more formal and typically more expensive than many states. There is no independent administration option like Texas has — the personal representative must follow court-supervised procedures. Florida also requires that the personal representative be either a Florida resident, a spouse, a family member, or a Florida-licensed attorney — you cannot name an out-of-state friend as your executor.

Probate paths

What people get wrong

Assuming that naming a personal representative in your will means they can act independently. Florida probate is court-supervised — the personal representative must petition the court for many actions. Also: assuming that a non-resident friend can serve as executor. Florida restricts personal representative eligibility to state residents, spouses, family members, and Florida-licensed attorneys.

When a trust is useful

Florida is one of the states where trusts provide the most value. The probate process is more expensive and time-consuming than average, there's no independent administration, and the personal representative residency requirement creates complications for people with out-of-state family. Trusts are especially common among retirees who own property in multiple states.

When a trust is unnecessary

Very small estates that qualify for summary administration or disposition without administration. If the only significant asset is homestead property (which bypasses probate anyway) and all other assets have beneficiary designations, a trust may add unnecessary complexity.

Key mistake

Failing to fund the trust. A revocable trust only avoids probate for assets that have been retitled in the trust's name. Florida homestead property can be held in a revocable trust — and the homestead protection is preserved — but the transfer must be done correctly. An unfunded trust is useless.

Moving to Florida without updating estate planning documents

Documents valid in other states may not comply with Florida's stricter execution requirements. Holographic wills from other states are not recognized. POAs may be missing the witness or notarization requirements Florida demands.

Trying to leave homestead property to someone other than a spouse

If you have a surviving spouse or minor children, the Florida Constitution restricts who can inherit your homestead. Your will cannot override this. The only exception: you can leave the homestead to your spouse if there are no minor children.

Naming an out-of-state friend as personal representative

Florida restricts personal representative eligibility. Non-residents who are not spouses, siblings, parents, children, or other close relatives cannot serve. Naming an ineligible person means the court will appoint someone else.

Having both healthcare directive witnesses be family members

At least one of the two required witnesses must not be a spouse or blood relative. Two family members as witnesses can invalidate the directive.

Signing a POA without notarization

Florida requires both two witnesses and notarization for a durable power of attorney. Most states require one or the other. Missing the notarization invalidates the document.

Assuming probate is quick and informal

Florida has no independent administration. Probate is court-supervised, the personal representative must follow formal procedures, and the process typically takes 6–12 months even for uncontested estates.

Creating a trust but not retitling homestead property into it

Homestead property can be held in a revocable trust and maintain its constitutional protections — but only if it's properly transferred. Many people create trusts and forget to deed the home into the trust.