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Miami Dade
Broward
Most people who come to us for estate planning are not worried about taxes. They are worried about what happens to the house, who can speak for them in a hospital, and whether their children will end up arguing. Those are the right things to worry about, and in Florida they turn on a handful of specific rules that catch out people who have done this before in another state.
A will signed at a kitchen table in New Jersey may be worthless here. A Florida home cannot always be left to whomever you choose. A power of attorney that only takes effect “if I become incapacitated” does not work in this state at all. Our attorneys prepare the documents, in English or Spanish, and explain what each one does before you sign it.
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Offices in Miami, North Miami, Hollywood and Tallahassee. Hablamos español.
A plan is not one document. It is a small set of them, each answering a different question, and the common failure is having two of the four.
| Document | What it does | What happens without it |
|---|---|---|
| Last will and testament | Directs who receives your property and names the person who will administer your estate | Florida’s intestacy statute decides, and it may not match what you assumed |
| Revocable living trust | Holds assets during your life and passes them on at death without going through probate | Assets in your sole name pass through probate, which is public and takes time |
| Durable power of attorney | Lets someone you choose handle money, property and paperwork if you cannot | Your family may have to ask a court to appoint a guardian |
| Health care surrogate and living will | Names who makes medical decisions for you, and records what you want at the end of life | The decision falls to whoever the statute ranks first, which may not be who you would have picked |
Which of these you actually need depends on what you own, who depends on you and how your accounts are titled. That is the conversation, not a form.
This is the most common reason a will fails here, and it has nothing to do with what the will says. Florida requires that the testator sign at the end of the will, in the presence of at least two attesting witnesses, and that those witnesses sign in the presence of the testator and of each other. Miss a step and the document can be challenged.
“The testator must sign the will at the end … in the presence of at least two attesting witnesses … The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.”Fla. Stat. § 732.502(1)
The trap for new arrivals is the next subsection. Florida will honor a will signed in another state if it was valid where it was executed — but not a handwritten one. A holographic will is not valid in Florida even if the state you wrote it in recognized it.
“Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida … is valid as a will in this state if valid under the laws of the state or country where the will was executed.”Fla. Stat. § 732.502(2)
A handwritten will that happens to have been signed with two witnesses in the proper form is a different thing — the statute says that one is not treated as holographic. The point is the formalities, not the handwriting. If you moved here with documents from somewhere else, having them looked at is a short piece of work and worth doing.
A will can also be made self-proving, which means the witnesses swear to it at the time of signing rather than being tracked down years later when the estate is opened. There is no good reason to skip it.
If you own a home in Florida and you are survived by a spouse or a minor child, you cannot simply leave that home to whomever you like. The restriction is constitutional and it overrides the will.
“[T]he homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner’s spouse if there is no minor child or minor children.”Fla. Stat. § 732.4015(1)
In practice that means a will leaving the house to adult children from a first marriage, or into a trust, can fail where there is a surviving spouse or a minor child — and what happens instead is set by statute rather than by the document. The rule also reaches homestead property held in a revocable trust, so putting the house in a trust does not route around it.
This is the single most common reason a Florida estate plan does not do what the person who signed it believed it would. It is also solvable, but the options depend on the family — a spousal waiver, how the property is titled, or a different structure altogether. It is worth raising at the first meeting rather than the last.
A Florida spouse who is left out of a will, or left less than the statutory minimum, can elect against the estate and take a fixed share instead.
“The elective share is an amount equal to 30 percent of the elective estate.”Fla. Stat. § 732.2065
The elective estate is broader than the probate estate — it reaches certain assets that pass outside a will. For blended families in particular, planning that ignores the elective share tends to produce the litigation it was meant to prevent.
If there is no will at all, the intestacy statute governs, and it is not the simple answer most people expect. A surviving spouse takes the entire intestate estate where the decedent left no descendants, or where all of the decedent's descendants are also descendants of the surviving spouse and the spouse has no other descendants. Where either of those is untrue — a child from an earlier relationship on either side — the spouse takes one-half and the descendants take the rest.
Many people arrive wanting a power of attorney that sits in a drawer and springs into effect if they become incapacitated. That is how it works in a number of states. It is not how it works here.
“[A] power of attorney is ineffective if the power of attorney provides that it is to become effective at a future date or upon the occurrence of a future event or contingency.”Fla. Stat. § 709.2108(3)
A Florida durable power of attorney is effective when you sign it. That makes the choice of agent the whole question, and it is why we spend time on it rather than handing over a form.
Florida also requires that certain authorities be signed or initialed separately by the principal, next to each one, rather than buried in a block of boilerplate. They include creating an inter vivos trust; amending, modifying, revoking or terminating a trust; making a gift; creating or changing rights of survivorship; creating or changing a beneficiary designation; waiving the principal's right to be a beneficiary of a joint and survivor annuity or retirement plan survivor benefit; and disclaiming property and powers of appointment. A document that omits those initials can leave your agent unable to do the one thing you most needed them to do.
Two separate documents do two different jobs. A designation of health care surrogate names the person who speaks for you. A living will records what you want if you are in an end-of-life condition and cannot say so yourself. Having one without the other is a common gap.
Both have witnessing rules of their own, and they are not the same as the rules for a will:
The witnessing requirements are the part most often got wrong on documents downloaded from the internet, usually by having a spouse and an adult child sign as the two witnesses.
Estate planning is marketed on tax and bought for peace of mind, and for the vast majority of Florida families the tax part is simply not in play.
If your estate is below that, the reasons to plan are probate, incapacity and family conflict — not tax. If it is above it, or close, the planning is a different and more technical exercise and should start earlier than you think.
Estate planning is what you do in advance. When a person has died, the work is probate, and we handle that too — administration where everyone agrees, and litigation where they do not. Our probate and guardianship page covers that side.
Two points that come up constantly. Florida has a shortened procedure, summary administration, where the estate subject to administration in this state (less property exempt from creditors' claims) does not exceed $150,000, or where the decedent has been dead for more than two years. And a personal representative who lives outside Florida can only serve if they are related to the decedent in one of the ways the statute lists — an adopted child or adoptive parent, a relative by lineal consanguinity, a spouse, sibling, uncle, aunt, nephew or niece, or the spouse of someone otherwise qualified. Naming an out-of-state friend as executor is a plan that fails at the courthouse.
We have offices in Miami, North Miami, Hollywood and Tallahassee, and we work in English and Spanish. An initial consultation costs nothing and is the right place to find out whether you need a will, a trust, or simply a look at the documents you already have.
Bring, if you have them: any existing will, trust or power of attorney; the deed to your home; a rough list of accounts and beneficiary designations; and the names of the people you would want to act for you. None of it is required for a first conversation.
Usually, if it was validly executed where you signed it — Florida recognizes a nonresident's will that was valid under the law of the state or country where it was executed. The exception is a handwritten (holographic) will, which is not valid here even if the state you wrote it in recognized it. If you have moved to Florida, it is worth having the document reviewed rather than assuming.
Not as a holographic will — Florida does not recognize them. A handwritten document can be a valid Florida will only if it was executed with the same formalities as any other will: signed at the end by the testator, in the presence of two attesting witnesses, who sign in the presence of the testator and of each other.
It depends on what you own and how it is titled, not on a rule of thumb. A will directs who receives your property but does not avoid probate; a revocable living trust can keep assets out of probate but has to be funded properly to do anything at all. Many Florida plans use both. That is one of the first things an attorney will work through with you.
Not always. If you are survived by a spouse or a minor child, Florida restricts how homestead property may be devised — it may be left to a spouse only where there is no minor child, and otherwise the statute, rather than your will, determines what happens. The rule also applies to homestead held in a revocable trust. There are ways to plan around it depending on the family, which is exactly why it should be raised early.
No. Under Florida law a power of attorney is ineffective if it provides that it becomes effective at a future date or on a future event or contingency. A Florida durable power of attorney is effective when signed, which makes the choice of agent the most important decision in the document.
The intestacy statute decides. A surviving spouse takes the whole intestate estate if there are no descendants, or if all of the descendants are descendants of both spouses and the surviving spouse has no other descendants. Where there are children from an earlier relationship on either side, the spouse takes one-half and the descendants take the rest. Homestead and exempt property are handled under separate rules.
Yes. The firm handles probate administration, probate and trust litigation, and guardianship matters alongside planning. If you are here because a relative has died rather than to plan ahead, the probate and guardianship page is the place to start.
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This page is general information about Florida law, not legal advice, and reading it does not create an attorney-client relationship. Statutes change and how they apply depends on your circumstances. Speak with an attorney about your own situation.