Estate Planning and Probate in Florida: A Complete Guide

Estate planning is the process of deciding—while you are alive and competent—who will receive your property when you die, who will manage your affairs if you cannot, and how to minimize the cost, delay, and conflict that can otherwise fall on your family. Probate is the court-supervised process that carries out a will (or distributes property when there is no will) after death. In Florida, both are governed largely by the Florida Probate Code (Fla. Stat. ch. 731–735), the Florida Trust Code (Fla. Stat. ch. 736), and a powerful constitutional homestead protection (Fla. Const. Art. X § 4) that shapes nearly every Florida estate plan.

This guide explains how wills, trusts, probate, homestead, and advance directives work in Florida, and where Florida law differs sharply from other states. It is general information, not legal advice; the rules below contain exceptions, and dollar thresholds and forms change over time, so confirm the current statute and consult a Florida attorney before acting.

The core documents in a Florida estate plan

Most Florida estate plans are built from a small set of documents, each doing a different job. A last will and testament directs who receives your probate assets and names a personal representative (Florida's term for an executor). A revocable living trust can hold assets so they pass outside probate. A durable power of attorney (Fla. Stat. ch. 709) lets someone manage your finances if you become incapacitated. A designation of health care surrogate and a living will (Fla. Stat. ch. 765) cover medical decisions and end-of-life wishes. Together these documents address both death and incapacity—the two events estate planning exists to manage.

No single document does everything. A will has no effect until death and does not avoid probate. A trust controls only the assets actually transferred into it. A power of attorney dies with you. Because each tool has gaps, a coordinated plan—not a single form—is what protects a family.

Wills in Florida and why the rules are strict

Under Fla. Stat. § 732.502, a valid Florida will must be in writing, signed by the testator at the end, and signed by two attesting witnesses who are present at the same time and watch the testator sign (or acknowledge the signature). Florida is notably strict: it does not recognize holographic (unwitnessed handwritten) wills or nuncupative (oral) wills, even if they would be valid in the state where they were written. A handwritten note left in a drawer, no matter how clear, generally has no legal force in Florida.

A smart addition is a self-proving affidavit under Fla. Stat. § 732.503. Signed by the testator and witnesses before a notary, it lets the court admit the will without tracking down the witnesses years later, speeding probate. To name guardians for minor children, dispose of personal property, and direct who inherits, a properly executed will remains foundational—even for people who also have a trust. For the full mechanics, see our guide to Florida wills.

Revocable living trusts and avoiding probate

A revocable living trust under the Florida Trust Code (Fla. Stat. ch. 736) is a separate legal arrangement you create during life, typically naming yourself as the initial trustee. Assets you transfer (“fund”) into the trust are owned by the trust, so at death they pass to your beneficiaries under the trust's terms without court-supervised probate. Because the trust is revocable, you keep full control while alive—you can amend or revoke it at any time.

The benefits are privacy (trusts are not filed publicly like wills), continuity if you become incapacitated, and avoidance of probate delay and cost. The catch is funding: a trust controls only assets actually retitled into it. Most Florida trust plans pair the trust with a pour-over will, which catches any asset left outside the trust and directs it into the trust at death. Learn more in our guide to living trusts in Florida.

The Florida probate process

Probate administers the assets that pass under a will or by intestacy (no will). Florida offers two main paths. Formal administration (Fla. Stat. ch. 733) is the full process: the court appoints a personal representative, who marshals assets, notifies creditors, pays valid claims and taxes, and distributes what remains. Summary administration (Fla. Stat. ch. 735) is a faster, simpler procedure available when the non-exempt estate is worth less than $75,000, or when the decedent has been dead for more than two years. For very small estates with no real property and limited assets, disposition without administration may release funds without opening a formal case.

Even with a will, probate is required for assets titled in the decedent's sole name without a beneficiary. Assets that pass automatically—jointly held property with survivorship rights, payable-on-death accounts, life insurance with named beneficiaries, and trust assets—skip probate entirely. Florida also requires that a will be deposited with the clerk within 10 days of learning of the death (Fla. Stat. § 732.901). Our Florida probate process guide walks through each step.

Florida homestead: protection and devise restrictions

Florida's constitutional homestead (Fla. Const. Art. X § 4) is unusually powerful and works in two directions. First, it shields your primary residence from most creditors with no dollar cap on value—only an acreage limit of one-half acre within a municipality or 160 acres outside one. This is why Florida is considered a strong asset-protection state for homeowners.

Second, homestead restricts how you can leave the home at death. Under Fla. Stat. §§ 732.401 and 732.4015, if you are survived by a spouse or a minor child, you generally cannot freely devise your homestead to anyone else. A surviving spouse typically receives a life estate (or may elect a one-half tenancy-in-common interest), with the remainder to descendants. An improperly drafted will or trust can trigger these rules and defeat your intentions, so homestead planning is central in Florida. See our homestead and estate planning guide.

Planning for incapacity: powers of attorney and advance directives

Estate planning is not only about death. If you become incapacitated without the right documents, your family may have to seek a court-supervised guardianship (Fla. Stat. ch. 744)—costly, public, and slow. To avoid that, Florida law lets you appoint trusted decision-makers in advance.

A durable power of attorney (Fla. Stat. ch. 709, the Florida Power of Attorney Act) authorizes an agent to handle financial and legal matters. Note that Florida's statute requires powers to be specifically enumerated and is effective when signed (Florida does not recognize a true “springing” power of attorney that activates only on later incapacity). A designation of health care surrogate and a living will under Fla. Stat. ch. 765 cover medical decisions and life-prolonging procedures, and a do-not-resuscitate order (DNRO) directs emergency responders. Our advance directives guide explains each one.

Beneficiary designations and non-probate transfers

Many of your most valuable assets do not pass under your will at all. Life insurance, retirement accounts (IRAs and 401(k)s), annuities, payable-on-death (POD) bank accounts, and transfer-on-death (TOD) brokerage accounts pass directly to the beneficiaries you name with the institution. Florida also permits enhanced life estate (“Lady Bird”) deeds and TOD-style arrangements for real property in some circumstances, allowing a home to pass at death without probate while preserving homestead protections during life.

Because these designations override your will, keeping them current is essential. A forgotten ex-spouse named on a 401(k), or a beneficiary form never updated after a child's birth, can undo an otherwise careful plan. Florida does have a statute (Fla. Stat. § 732.703) that voids certain beneficiary designations in favor of a former spouse after divorce, but it has limits—reviewing every designation is far safer than relying on it.

The surviving spouse's protections

Florida gives a surviving spouse several overlapping protections that a will cannot eliminate. The elective share (Fla. Stat. §§ 732.201–.2155) entitles a surviving spouse to 30% of the “elective estate,” a broad figure that reaches beyond probate assets to include certain trusts, joint accounts, and transfers. A spouse omitted from a will signed before the marriage may take an intestate share as a pretermitted spouse (Fla. Stat. § 732.301). Spouses are also entitled to homestead protections, a family allowance, and exempt property (Fla. Stat. § 732.402).

These rights can be waived—but only through a valid prenuptial or postnuptial agreement that meets Florida's disclosure and execution standards (Fla. Stat. § 732.702). Couples in blended families especially need to plan around these protections, because they can override the distribution scheme in a will or trust.

Intestacy: what happens with no will

If you die without a valid will, Florida's intestate succession statute (Fla. Stat. §§ 732.101–732.111) decides who inherits. In broad terms, a surviving spouse takes the entire intestate estate if all descendants are shared with that spouse and neither has other children; otherwise the spouse takes one-half and the descendants share the rest. With no spouse, the estate passes to descendants, then to parents, then to siblings, and outward along the family tree.

Intestacy rarely matches what people actually want. It ignores stepchildren, unmarried partners, charities, and friends; it can force a home sale to divide shares; and it offers no guardianship choice for minor children. Writing a valid will—or a trust—replaces these default rules with your own.

Taxes on Florida estates

Florida is one of the most tax-friendly states for estates. It has no state estate tax, no state inheritance tax, and no state income tax. The only death tax that may apply is the federal estate tax, which affects only estates above the federal exemption (a figure indexed for inflation and subject to change by Congress—confirm the current amount before relying on it). For the large majority of Florida families, no estate tax is owed at all.

That said, income-tax basis planning still matters. Assets included in an estate generally receive a “stepped-up” cost basis at death, which can save heirs substantial capital-gains tax when they later sell. Coordinating which assets pass through the estate, and how, is part of a sound plan even where no estate tax applies.

When and how to update your plan

An estate plan is not a one-time event. Review it after marriage, divorce, the birth or adoption of a child, a death in the family, a major change in assets, or a move to or from Florida. Because Florida's witnessing, homestead, and spousal rules differ from other states, an out-of-state will or trust should always be reviewed by a Florida attorney after a move—it may be valid but still produce unintended results under Florida law.

Keep originals safe and accessible, tell your personal representative and agents where to find them, and revisit beneficiary designations whenever you revisit the core documents. Small maintenance prevents large problems later.

Frequently asked questions

Is a handwritten will valid in Florida?

Generally no. Florida does not recognize holographic (unwitnessed handwritten) or oral wills. To be valid, a will must be signed and witnessed by two competent witnesses under Fla. Stat. § 732.502. A handwritten document that happens to be signed and properly witnessed can be valid, but the handwriting itself is not what makes it work—the two-witness formality is.

Do I need both a will and a trust?

Many Floridians use both. A revocable living trust (Fla. Stat. ch. 736) avoids probate for the assets it holds, while a pour-over will catches anything left outside the trust and names guardians for minor children. A will alone is sufficient for simpler estates, but it does not avoid probate. The right combination depends on your assets, family situation, and goals.

How long does probate take in Florida?

Summary administration can sometimes conclude in a few weeks to a couple of months. Formal administration (Fla. Stat. ch. 733) typically takes six months to a year or more, in part because creditors are given a claims period after notice. Complex estates, disputes, or tax filings extend the timeline. Avoiding probate through trusts and beneficiary designations is the main way to shorten it.

Can I leave my Florida home to anyone I choose?

Not always. If you are survived by a spouse or a minor child, Florida's homestead devise restrictions (Fla. Const. Art. X § 4; Fla. Stat. §§ 732.401, 732.4015) limit how you can leave your primary residence. The surviving spouse generally receives at least a life estate or an elective one-half interest. This is one of the most important—and most misunderstood—features of Florida estate planning.

Does Florida have an estate tax?

No. Florida has no state estate tax, no inheritance tax, and no state income tax. Only the federal estate tax may apply, and it reaches only estates above the federal exemption amount, which changes over time. Most Florida estates owe no death tax at all.

What is the elective share?

The elective share (Fla. Stat. §§ 732.201–.2155) lets a surviving spouse claim 30% of the “elective estate,” a broad measure that includes more than just probate assets. It prevents a spouse from being disinherited. It can be waived only through a valid prenuptial or postnuptial agreement that meets Florida's requirements.

What happens if I die without a will in Florida?

Your property passes under Florida's intestate succession rules (Fla. Stat. §§ 732.101–732.111), generally to your spouse and descendants, then to more distant relatives. The court, not you, effectively decides distribution and the guardian for minor children. This rarely matches what people want, which is why even a simple will is worthwhile.

When should I use a power of attorney instead of a guardianship?

A durable power of attorney (Fla. Stat. ch. 709) lets you choose your agent in advance and avoid court entirely. If you lose capacity without one, your family may have to petition for a guardianship (Fla. Stat. ch. 744), which is public, ongoing, and expensive. Signing a durable power of attorney and health care documents (Fla. Stat. ch. 765) while you are well is the better path.

Find a Florida estate planning attorney

Florida's witnessing rules, homestead protections, spousal elective share, and probate procedures create traps that generic online forms often miss. A Florida estate planning attorney can build a coordinated plan—will, trust, powers of attorney, and advance directives—tailored to your family and assets, and a Florida probate attorney can guide a personal representative through administration. Because this guide is general information and not legal advice, consult a licensed Florida attorney about your specific situation.