Florida Estate Planning Law

Estate planning in Florida creates the legal documents that control how assets are managed during incapacity and distributed after death. A properly structured plan avoids probate, minimizes taxes, protects beneficiaries, and ensures property reaches the intended recipients.

Florida imposes no state income tax, no inheritance tax, and no estate tax, and its constitutional homestead protection has no dollar cap. None of that avoids probate on its own: without a will, a trust, or a deed that carries property to a beneficiary, an estate still passes through the probate court.

Living Trusts

A living trust owns a person’s assets during life and passes them to the beneficiaries at death without probate. The grantor transfers assets into the trust during life, remains the trustee, and names a successor trustee who takes over during incapacity or at death. The trust agreement never becomes a public record: at the grantor’s death the trustee files only a short notice of trust with the court.

The successor trustee can begin distributing in weeks rather than the months or years probate takes. A revocable trust stays liable for the expenses of administration and the obligations of the grantor’s estate to the extent the probate estate cannot pay them, so a careful trustee holds back a reserve before distributing.

A living trust also handles incapacity. If the grantor becomes unable to manage their own affairs, the successor trustee takes over the trust’s assets immediately, without a court-supervised guardianship.

Creating a trust in Florida involves drafting the trust agreement, choosing a trustee, funding the trust with assets, and preparing supporting documents including a pour-over will and power of attorney.

Wills

A last will and testament directs how probate assets are distributed and names a personal representative to manage the probate case. Every Florida adult needs a will, including those who have a living trust, because a pour-over will catches any assets not transferred to the trust during life.

A will can name a guardian for minor children, and the court must consider that nomination when the child is a beneficiary of the will. Florida also lets both parents sign a separate preneed guardian declaration and file it with the clerk under § 744.3046. That declaration carries more weight: when it is produced, the named guardian is presumed entitled to serve and takes over immediately on the death of the last surviving parent. Parents of minor children should sign both.

A will does not override every inheritance rule. Florida law lets a surviving spouse claim 30% of the elective estate under § 732.2065 no matter what the will says, unless the spouse signed a valid waiver, and homestead property follows its own constitutional rules that a will cannot override. Without coordinated planning, default rules can produce results a couple never intended, particularly in blended families.

Assets passing under a will are subject to court supervision, attorney and personal representative fees paid out of the estate, and public disclosure. On a $500,000 estate, the attorney fee schedule that Florida law presumes reasonable reaches approximately $15,000. Personal representative compensation follows a similar schedule under § 733.617, and on the same estate it can reach the same amount.

Most estate plans include both a will and a trust. A will takes effect only at death, and everything it governs goes through probate. A trust holds title from the day it is funded, so the assets in it pass through incapacity and death without a court.

Incapacity Planning Documents

Three documents protect a person who becomes unable to make decisions independently: a durable power of attorney, a designation of health care surrogate, and a living will.

A durable power of attorney names an agent to manage financial affairs: paying bills, handling investments, accessing accounts. In Florida the document is effective the moment it is signed, not when the principal later becomes incapacitated. Since October 1, 2011, a power of attorney that says it takes effect at a future date or event is invalid, with a narrow exception for military deployment. Durable means the agent’s authority continues through the principal’s incapacity. Without one, family members must petition a court for guardianship, which is expensive and time-consuming.

A designation of health care surrogate names a person to make medical decisions when the patient cannot. Florida does not mandate a particular form. Section 765.202 requires the document to be signed by the principal in front of two adult witnesses, and the person named as surrogate cannot be one of them. At least one witness must be neither the principal’s spouse nor a blood relative, and a living will is signed under the same rule.

A living will states preferences about life-sustaining treatment. It tells physicians and the health care surrogate whether to continue or withdraw treatment once the patient has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A physician may act on it only when there is also no reasonable medical probability that the patient will recover the capacity to decide.

These three documents work alongside a living trust to form an incapacity plan. Without them, a family may need court intervention even if a trust handles the financial assets.

Avoiding Probate

Florida law provides several tools that pass property outside probate: living trusts, lady bird deeds, beneficiary designations on financial accounts, and joint ownership with right of survivorship. Most Florida estate plans combine more than one of them, so that little or nothing is left to probate at death. Property that passes outside probate stays out of the public court file and reaches the beneficiary without waiting for the estate to be administered.

Motor vehicles are one of the most common assets families need to handle after a death. Florida Statute § 319.28(1)(b) allows car title transfers after death without probate. A surviving spouse or a surviving co-owner needs no showing about the estate’s debts at all, and an heir taking under an unprobated will or by intestacy files an affidavit that the estate is not indebted. Where there is no will, that affidavit also states that the surviving spouse and heirs have agreed on how the estate is divided.

Lady Bird Deeds

A lady bird deed transfers Florida real estate to named beneficiaries at death while the owner retains full control during life, including the right to sell, mortgage, or revoke the deed. The property passes automatically outside of probate, and because the owner’s retained power to revoke keeps the home in the owner’s estate, the beneficiaries typically take it at its date-of-death value for tax purposes.

A lady bird deed is the least expensive way to keep a residence out of probate when the residence is the owner’s whole estate planning concern. Florida has no transfer on death deed statute, but a lady bird deed reaches the same result as a transfer on death deed in other states.

No statute authorizes the lady bird deed either, and the judicial authority is a single 1917 Florida Supreme Court decision. The Florida Bar’s uniform title standards, adopted in 2019, tell title examiners how to treat these deeds, and title companies throughout Florida accept properly drafted ones.

A lady bird deed covers one piece of Florida real estate, while a living trust holds any asset funded into it and controls when the beneficiaries receive it. Recording the deed is not a completed gift, so it triggers no gift tax during the owner’s life. Because the property passes outside probate, it is also outside Florida’s Medicaid estate recovery, which reaches only the probate estate.

Life Estate Deeds

Life estate deeds divide property ownership into a present interest (the life estate) and a future interest (the remainder). A traditional life estate deed gives the owner the right to possess the property during life but restricts the ability to sell or mortgage without the remainderman’s consent. An enhanced life estate deed (the lady bird deed) removes those restrictions. Signing a traditional deed makes a completed gift of the remainder interest and gives the beneficiaries a step-up on only the life estate portion; the enhanced version makes no gift and carries the full step-up.

Adding or Removing Names from Deeds

Adding a name to a Florida deed requires a new deed from the current owner, and removing a name requires the cooperation of the person coming off it. Adding a non-spouse can trigger documentary stamp tax on that person’s share of any mortgage, leaves the new co-owner’s share outside the owner’s homestead protection, and changes nothing about the mortgage the owner still owes. For a parent who wants a child to receive the house, a lady bird deed passes it at death without creating a present co-owner.

Inheritance Tax and Estate Tax

Florida does not impose an inheritance tax or estate tax. The Florida Constitution caps a state estate or inheritance tax at the amount the federal government allows as a credit against the federal estate tax. That credit ended for deaths after 2004, so Florida’s tax has been zero ever since, and only a constitutional amendment approved by 60% of voters could change the cap.

The federal estate tax still applies to very large estates, but the exemption is $15 million per person as of 2026 under the One Big Beautiful Bill Act. A married couple has $30 million if the first spouse’s estate files a return electing to carry the unused exemption over. At that exemption level, only a very small fraction of estates nationwide owe any federal estate tax.

How Much Does Estate Planning Cost in Florida?

A simple will package in Florida, which includes the will, a durable power of attorney, a health care surrogate designation, and a living will, costs between $1,000 and $2,000. A lady bird deed runs $400 to $1,000 including preparation and recording. A living trust package, which typically includes the trust, pour-over will, power of attorney, health care surrogate designation, and living will, costs between $2,000 and $5,000.

Plan Type	Typical Cost Range	What’s Included
Simple will package	$1,000–$2,000	Will, durable power of attorney, health care surrogate designation, and living will
Lady bird deed	$400–$1,000	Deed preparation and recording
Living trust package	$2,000–$5,000	Trust, pour-over will, power of attorney, health care surrogate, living will

A simple will package fits an owner whose assets already pass by beneficiary designation or survivorship, and whose remaining concern is who receives what is left. A lady bird deed addresses a single property. A living trust package fits an owner with out-of-state real estate, accounts with no beneficiary named, a business interest, or beneficiaries who should not receive money outright.

Whether the trust package saves more than it costs depends on what would otherwise be probated. Florida’s presumed-reasonable fee schedule runs on the inventory value of the probate estate, and protected homestead is not a probate estate asset, so an owner whose main asset is the homestead saves less than the schedule suggests. An owner with substantial non-homestead assets saves the most.

What an Estate Plan Does Not Do

A standard estate plan does not protect assets from creditors during the owner’s lifetime. Property in a revocable living trust is reachable by the grantor’s judgment creditors to the same extent it would be if the grantor held it outright. A lady bird deed leaves the owner’s judgment liens and creditor claims attached to non-homestead property exactly as they would be without the deed. What is exempt stays exempt either way: a Florida homestead keeps its constitutional protection inside a revocable trust and under a lady bird deed.

Lifetime asset protection uses different tools: Florida’s statutory exemptions, entity structures, irrevocable trusts in which the person who funds the trust is not a beneficiary, and offshore trust structures for large non-exempt holdings. Under § 736.0505(1)(b) a creditor can reach whatever the trustee could distribute back to the person who created the trust.

Domestic asset protection trusts formed in other states are deliberately not on that list. No Florida court has yet ruled on an out-of-state asset protection trust created by a Florida resident. The law points against protection: Florida courts honor a trust’s chosen law only until it violates a strong Florida public policy, and Florida treats its rule against self-settled trusts as exactly that.

A standard estate plan also does not reduce income taxes. A revocable living trust is a grantor trust for income tax purposes, meaning all trust income is reported on the grantor’s personal tax return. The trust provides no income tax advantage during the grantor’s lifetime.