A guide to estate planning in Florida

Without a plan, Florida law makes those decisions. Property passes under the intestacy statutes, the Florida laws that decide who inherits when there is no will. The court uses an order of priority set by law to choose who settles the estate. If you become unable to manage your affairs, your family may need a guardianship, a court case in which a judge appoints someone to act for you.

• A will, which names who receives your property, your personal representative (the person who settles your estate, called an executor in many other states), and a guardian for minor children.
• A revocable living trust, when appropriate, to pass property without probate, the court process that transfers property after death. It is paired with a pour-over will, which moves into the trust any property left outside it.
• A durable power of attorney, which names an agent for financial and legal matters and stays in effect if you become incapacitated.
• A health care surrogate designation, which names the person who makes medical decisions if you cannot.
• A living will, which records your wishes about life-prolonging treatment.
• A HIPAA authorization, so the people you name can speak with your doctors.
• For the home, when appropriate, a Lady Bird deed, which passes the home to the people you name without probate, or a deed to your trust.
• A designation of pre-need guardian, which tells the court whom you would want if a guardianship were ever needed.

A will directs the probate court, so property that passes under a will still goes through probate. A funded revocable trust avoids probate for the assets it holds, and it also lets a successor trustee manage those assets if you become incapacitated. The Florida wills and trusts guide compares the two in detail.

A homestead can be left to anyone only when there is no surviving spouse and no minor child. If you are married and have no minor child, the home may be left to your spouse. Spouses can also give up their homestead rights in a written agreement, often a prenuptial or postnuptial agreement. When a homestead is left in a way the rules do not allow, Florida law generally gives the surviving spouse a life estate, the right to live in and use the home for life. The spouse can choose a one-half interest instead. The rest passes to the descendants.

The homestead is also protected from most creditors. A plan prepared with care can keep the homestead tax exemption in place during your lifetime, along with the Save Our Homes assessment limitation, which limits yearly increases in the home's assessed value.

The elective estate is broader than the probate estate. It can include assets in a revocable trust, jointly owned property, payable-on-death accounts, and retirement accounts. The election generally must be filed within six months after the spouse is served with notice of the probate administration, or within two years after the death, whichever comes first. Plans for second marriages usually address the elective share directly, with a written agreement between the spouses or with trust provisions designed with the rule in mind.

• Banks and title companies may hesitate to accept an out-of-state power of attorney, especially one that takes effect only upon incapacity.
• The personal representative named in the will may not qualify to serve in Florida unless that person is a Florida resident or a qualifying relative.
• The plan may not account for Florida's homestead rules.
• Health care documents may use terms that Florida doctors and hospitals do not recognize easily.

Establishing Florida residency also matters. The homestead exemption, a Florida driver license, voter registration, and a Declaration of Domicile filed with the clerk of the circuit court all help show that Florida law governs your estate.

1. 1

   A 15-minute call or in-person consultation

   Season or her staff learn about your family, your home, and your goals, and confirm whether Spanski Law is the right fit.

2. 2

   A recommended plan and a written flat fee

   Season recommends the documents that suit your situation, and Spanski Law quotes a flat fee in writing before any work begins.

3. 3

   Drafting and review

   Your documents are drafted and reviewed with you, with time between meetings to read them and ask questions.

4. 4

   Signing

   The documents are signed at the office in Venice with the required witnesses and a notary.

5. 5

   Deeds and funding

   Deeds are recorded, and accounts and beneficiary designations are coordinated with the plan.

• A marriage, a divorce, or the death of a spouse.
• The birth or adoption of a child or grandchild.
• A move to Florida, or the purchase of property in another state.
• A significant change in your assets.
• The death, illness, or move of someone you named as personal representative, trustee, agent, or surrogate.