Florida Estate Planning Attorney

What Is a Florida Estate Plan?

A Florida estate plan is a set of documents that answer two questions. The first question is who receives what you own when you die. The second question is who acts for you if you cannot act for yourself.

The core documents are a will, a durable power of attorney, a health care surrogate designation, a living will and a HIPAA authorization. Florida law requires each one to be signed in a particular way. A will needs the signature of the person making it (the testator) at the end, and two witnesses signing in the presence of each other and the testator. A durable power of attorney needs two witnesses and a notary. The health care surrogate designation and the living will each need two witnesses too.

The five documents can be designed and signed together. The Secure Will Estate Plan is a flat fee from $1,200 (from $1,950 for a couple). The plan includes the five documents plus a lady bird deed on the home, plus recording.

People who want to avoid probate add a revocable trust. The Complete Trust Plan is a flat fee from $3,200 (from $4,500 for a couple). The Complete Trust Plan includes everything in the Secure Will Estate Plan, the revocable trust, a pour-over will, one funding deed moving the Florida homestead into the trust (plus recording), funding instructions and help retitling accounts.

The starting point is a free 30-minute consultation. We discuss what you own, who you want to provide for, and which plan matches your situation.

What Documents Does Every Florida Adult Need?

Every Florida adult needs five documents, and they are a will, a durable power of attorney, a health care surrogate designation, a living will and a HIPAA authorization. Each one solves a different problem, and each one must be signed according to its own requirements under Florida law.

The will names who inherits your property at death. Florida law says a will must be signed by the testator at the end, and witnessed by two people who sign in the presence of each other and in the presence of the testator. No particular form of words is necessary if the will is executed with the formalities required by law. A codicil (an amendment to a will) must be executed with the same formalities.

The durable power of attorney names who handles your money and property if you cannot. Florida law requires the power of attorney to be signed by the principal (the person granting the authority) and by two subscribing witnesses and acknowledged before a notary public. Without this document, your family may need a court-supervised guardianship to pay your bills.

The health care surrogate designation names who makes medical decisions for you when you cannot make them yourself. Florida law says the designation must be signed by the principal in the presence of two subscribing adult witnesses. The person you name as surrogate cannot act as a witness. At least one witness must be neither your spouse nor a blood relative.

The living will directs when life-prolonging procedures should be withheld or withdrawn. The living will applies when you have a terminal condition, an end-stage condition, or are in a persistent vegetative state. Florida law requires the principal's signature in the presence of two subscribing witnesses, and one of those witnesses must be neither your spouse nor a blood relative.

The HIPAA authorization lets your agents and family receive medical information about you.

A standalone will is a $299 flat fee. A durable power of attorney is a $350 flat fee. The health care surrogate, living will and HIPAA authorization together are a $350 flat fee per person.

What Is the Difference Between a Will and a Living Trust in Florida?

A will and a revocable living trust both say who inherits your property. The difference is how the property reaches them.

A will works through probate. Property left in your own name with no beneficiary designation and no survivorship passes through probate, which is the court-supervised process of paying debts and distributing what remains.

A revocable trust can hold property outside probate. Property titled in the name of the trust before your death passes to your beneficiaries according to the trust terms, without probate. The trust must be funded during your lifetime to work. An unfunded trust accomplishes nothing for probate avoidance, though a pour-over will still moves probate assets into the trust's terms at death.

A settlor (the person creating the trust) who is domiciled in Florida when signing must execute the trust's dispositive provisions (the parts that dispose of trust property on or after death) with the formalities required for a will. The settlor signs, and two witnesses sign in the presence of each other and in the presence of the settlor.

A revocable trust drafted alone is a $2,400 flat fee (from $3,200 for a couple). A deed moving a property into the trust is a $550 flat fee, plus recording.

How Do You Plan for Incapacity in Florida?

Incapacity planning answers who acts for you when you cannot act for yourself.

The durable power of attorney handles money and property. The power of attorney names an agent who can act on your behalf, but the agent holds only the powers the document grants specifically. Florida law requires the power of attorney to be signed by you and by two subscribing witnesses and acknowledged before a notary public.

Some powers are too important to grant by a general statement. Florida law lists specific powers that take effect only if you signed or initialed next to each one. The powers include creating a trust while you are alive, amending or revoking a trust you created (only if the trust instrument allows it), making a gift, creating or changing rights of survivorship, and creating or changing a beneficiary designation. Each one requires your initials next to the specific grant of authority.

The health care surrogate designation handles medical decisions. The surrogate is the person who makes health care choices for you and receives health information on your behalf when you cannot. Florida law requires your signature in the presence of two adult witnesses. The person you designate as surrogate cannot act as a witness, and at least one witness must be neither your spouse nor a blood relative.

The living will handles end-of-life treatment. The living will directs doctors to withhold or withdraw life-prolonging procedures when you have a terminal condition, an end-stage condition, or are in a persistent vegetative state. The living will speaks when you cannot. Florida law requires your signature in the presence of two witnesses, and one witness must be neither your spouse nor a blood relative.

A durable power of attorney is a $350 flat fee. The health care surrogate, living will and HIPAA authorization together are a $350 flat fee per person.

How Do You Avoid Probate in Florida?

Probate is a court process that transfers property from a person who has died to the people who inherit. Property left in your own name, with no beneficiary designation and no survivorship arrangement, goes through probate.

A funded revocable trust avoids probate for the property the trust holds. You transfer your home and accounts into the trust while you are alive, and when you die the successor trustee distributes them without going to court.

A lady bird deed on the home is a simpler way to keep the house out of probate. You keep full ownership and control while you are alive, including the right to sell, mortgage or change your mind. At your death the property passes to the person you named, as long as no minor child survives you. A lady bird deed by itself is a flat fee from $399 (flat fee from $449 for a couple), plus recording. The Complete Trust Plan includes a funding deed moving the homestead into the trust and is a flat fee from $3,200 (flat fee from $4,500 for a couple), plus recording.

Property that passes by beneficiary designation or by survivorship stays out of probate even without a trust. The question is what property you own, how each account is titled, and what happens if the beneficiary dies before you.

Why Does Florida Homestead Break Do-It-Yourself Plans?

Florida protects your home from creditors while you are alive and also limits what you can do with the home in your will. The Florida Constitution says the homestead cannot be left by will (devised) if the owner is survived by a spouse or a minor child. The home may go to the spouse by will only when there is no minor child.

A couple with no minor children can leave the home to each other. A widowed parent with adult children can leave the home to those children by will. A married parent with a minor child cannot leave the home to anyone by will, the spouse included. The child's interest comes from the Constitution, and a will cannot override it.

The Constitution does allow the owner and the spouse together to alienate (transfer) the homestead by mortgage, sale or gift. A lady bird deed signed by both spouses during life can pass the home outside the will. The deed works only when no minor child survives the owner. The same is true for a revocable trust holding the home.

A do-it-yourself will downloaded from a website does not know whether you are married or whether you have a minor child. The template gives you a blank to fill in, and if the blank conflicts with the Constitution, the Constitution wins.

The result is a home that passes by intestacy rules (the rules for dying without a will) instead of by your instructions. The spouse may receive a life estate (the right to live there for life) while the descendants hold the remainder (the part that passes at the spouse's death). A plan built for Florida homestead uses a deed, a trust or both, depending on the family.

What Can a Spouse Claim No Matter What the Will Says?

Florida law gives a surviving spouse the right to claim an elective share equal to 30 percent of the elective estate. The elective estate includes probate property, revocable trust assets, joint accounts that passed to someone other than the spouse, and certain transfers made during the marriage. A will that leaves less than 30 percent to the spouse does not prevent the claim.

The elective share is not automatic. The surviving spouse must file an election with the probate court within the earlier of six months after service of the notice of administration or two years after the death. If the spouse does nothing, the will controls.

The elective share can be waived by a written agreement signed before two witnesses. A prenuptial agreement or a postnuptial agreement can say that each spouse waives the right to claim against the other's estate. When the agreement is signed after marriage, each spouse must disclose their own estate to the other. Whether a waiver makes sense, and what it should cover, depends on the family and the assets. The free consultation covers the options.

Planning for the elective share matters most in second marriages, where each spouse may want to protect children from a prior relationship.

What Happens If You Die Without a Will in Florida?

Florida law decides who inherits when a person dies without a will. The rules, called intestate succession, apply to any property that does not pass by beneficiary designation, survivorship or a funded trust.

A surviving spouse takes the entire estate only when every descendant of the person who died is also a descendant of the spouse, and the spouse has no other descendants. A married couple who have children together and no children from prior relationships meet this standard. The spouse inherits everything.

The spouse's share drops to one-half when there is a descendant who is not the spouse's descendant. A person who has children from a prior relationship and then marries leaves half the estate to the spouse and half to the descendants. The children from the first relationship share equally with children of the new marriage.

The spouse's share also drops to one-half when the spouse has descendants who are not descendants of the person who died. If your spouse has a child from a prior relationship, the spouse takes only half. The other half passes to your own descendants.

When there is no surviving spouse, the estate passes to descendants. When there are no descendants and no spouse, the estate passes to the decedent's parents equally, or to the surviving parent. When there are no parents, the estate passes to siblings and the descendants of deceased siblings.

A will lets you decide who inherits and in what shares, rather than leaving the decision to the statute.

How Do You Plan for Blended Families, Minor Children and Special Needs?

Florida law divides an intestate estate in ways that surprise second marriages. A surviving spouse takes everything only when every descendant is also the spouse's and the spouse has no other descendants. When the deceased spouse has one or more descendants who are not the surviving spouse's children, the spouse takes one-half. The other half passes to the descendants. The same split applies when the surviving spouse has children from a prior relationship who are not descendants of the deceased spouse.

A will can override the intestacy defaults and leave the estate as you choose, within the homestead and elective share limits. A parent who wants a specific division between a spouse and children from a prior marriage writes the instructions in the will rather than relying on the statute.

Minor children present a different problem. Florida law does not allow a child under 18 to manage an inheritance outright. The natural guardian (usually a parent) may act for the child without court appointment, but only up to $15,000 in the aggregate. Above that amount, a court may need to appoint a guardian of the property.

A trust solves this. The Secure Will Estate Plan, flat fee from $1,200 (or $1,950 for a couple), holds a minor's share in trust until the child reaches 25, 30 and 35, paying out in stages rather than all at once.

A disabled beneficiary faces a harsher problem. An outright inheritance can disqualify the person from Supplemental Security Income and Medicaid. A special needs trust holds the inheritance for the beneficiary without disqualifying the person. A third-party special needs trust, funded with a parent's or grandparent's money, is a flat fee from $4,000. A first-party special needs trust, funded with the beneficiary's own money and subject to additional Medicaid requirements, is a flat fee from $7,000.

When Does Long-Term Care Planning Belong in the Plan?

Long-term care planning decides whether your savings survive a nursing home stay. The planning is a separate track from the estate plan most families start with, and the tools are different because Medicaid eligibility has its own rules.

A Medicaid asset protection trust is irrevocable. The person who creates the trust gives up the right to take the assets back. A Medicaid asset protection trust is a flat fee from $6,000 and must be signed more than five years before an application. The trust is a planning tool, not a rescue, and the five-year period cannot be shortened.

When income exceeds Florida's Medicaid cap, a qualified income trust (sometimes called a Miller trust) holds the excess so the applicant can still qualify. A qualified income trust is a $750 flat fee.

A Medicaid application itself is a flat fee from $3,500. The application covers an eligibility analysis, a verification packet, filing and answering agency requests. A crisis Medicaid engagement for a single applicant is a flat fee from $9,000 and includes a review of five years of statements before the filing. A crisis engagement for a married couple is more involved, and the flat fee is quoted at the consultation. A spousal refusal letter, when the at-home spouse declines to make the spouse's own assets available to the applicant, is a $500 flat fee.

Whether a Medicaid trust belongs in your plan depends on your age, your health, your assets and your family situation. The free consultation covers which approach fits your facts.

Does Florida Have an Estate Tax?

Florida has no estate tax and no state income tax on individuals. The Florida Constitution limits what the state may collect on estates and inheritances and on the income of natural persons who are residents or citizens. The Constitution says no tax on these may be levied by the state, or under its authority, in excess of the aggregate of amounts that may be credited against or deducted from any similar tax levied by the United States or any state.

The federal estate tax still applies to estates above the exemption. The federal estate and gift tax exemption is $15,000,000 per person in 2026.

Residents who moved to Florida from a state that imposes its own estate or inheritance tax may want to formalize the move. Florida law provides for a declaration of domicile, a sworn statement recorded in the county where you live. A second-home version of the declaration states that Florida is your predominant and principal home. A declaration of domicile is a flat fee from $350 (two separate declarations for a couple are $499). Notary and recording fees are additional and passed through at cost.

The declaration of domicile is one way to establish Florida domicile, and there are others. The free consultation covers whether the declaration fits your situation.

Can You Sign Your Estate Plan From Home?

Florida law allows a notary to perform notarial acts online. The principal appears before the notary by audio-video communication technology that meets the state's requirements. A witness may be in the physical presence of the principal or remote, appearing through the same technology.

A remote witness must verbally confirm that the witness is a resident of and physically located within the United States or a territory of the United States at the time of witnessing. The location requirement applies to a remote witness only. A witness who is physically present with the signer is not limited by geography.

Wills, revocable trusts with dispositive provisions, health care advance directives and powers of attorney that grant authority under a specific section of the statute carry additional requirements when fewer than two witnesses are physically present with the signer. The online notarization service provider asks certain screening questions before the signing proceeds. A power of attorney with banking or investment authority under that section triggers the questions. Any affirmative answer means only physically present witnesses count.

Remote witnessing does not work for everyone. Florida law provides that the presence of a witness with the principal by audio-video communication technology is not effective for witnessing the signature of a principal who is a vulnerable adult. If a contest arises later, the person challenging the document has the burden of proving that the principal was a vulnerable adult at the time of signing. For a signer who may qualify as a vulnerable adult, an in-person signing with physical witnesses avoids the problem.

The signing method does not change what the plan does. A signer who prefers paper or who qualifies as a vulnerable adult signs in person. The free consultation covers which signing method fits your situation and whether any additional steps are needed for your documents.

What Florida Courts Have Said About Plans That Fail

Florida law states that a will is void if its execution is procured by fraud, duress, mistake or undue influence. Any part of the will procured that way is void, and the remainder of the will stays valid if it is not invalid for other reasons. The statute gives families a way to set aside documents that do not reflect the signer's true wishes.

A 1988 Florida appeals decision shows how undue influence works in practice. A woman with advanced Alzheimer's disease signed in 1978 a new will and amended trust. A relative who stood to receive a large share of the estate was involved in the process. The relative was present when she said she wanted new documents. He recommended the law firm that drew up the 1978 papers, and the selection was concealed from her former lawyer. He knew the contents of the documents in advance. He and his sister hid the wills, trust and distributions from the rest of the family. He, his family and his sister's family received $338,000 in trust distributions between 1978 and 1984. The trial court revoked probate of the will and set aside the amended trust, and the Third District affirmed.

The trial court applied a test for undue influence. Under the test, "a presumption of undue influence arises when a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will." When those three facts appear together (a substantial gift, a close relationship and active involvement in getting the documents made), the burden shifts. The beneficiary must give a reasonable explanation of the beneficiary's active role. The explanation need only meet a minimal showing. The appeals court found an explanation in the record and held the presumption dispelled, but the three presumption facts remained as evidence. The appeals court could not say those facts failed to support a finding of undue influence on the greater weight of the evidence and affirmed.

What Does a Florida Estate Plan Cost?

Estate planning costs depend on what a family needs. A single document costs less than a coordinated set. A plan built around a revocable trust costs more than one built around a will, because the trust requires additional drafting and funding.

Government costs, including recording fees for any deed, are passed through at cost. The fee quoted covers the legal work, and the recording office charges are billed separately and exactly as charged. The free consultation confirms which plan fits and what the total will be before any commitment.

How Does the Process Work, Step by Step?

Estate planning moves through five stages, each with a clear purpose.

The first stage is the free 30-minute consultation. You describe what you own, who you want to receive your property and what concerns you most. The consultation identifies which plan fits and what the flat fee will be. No fee applies to the consultation itself.

The second stage is design. You decide who serves as executor or trustee, who serves as backup, and how each share pays out. A minor's share can stay in trust until ages 25, 30 and 35 rather than passing outright at 18. A beneficiary's share can remain protected for life.

The third stage is drafting. The documents are prepared based on your design decisions. You receive drafts for review before signing.

The fourth stage is signing. A will needs your signature at the end and two witnesses signing in your presence and in each other's presence. A power of attorney needs the same two witnesses and a notary acknowledgment. Documents can be signed from home using online notarization and remote witnesses who are residents of and physically located within the United States.

The fifth stage is funding. A revocable trust avoids probate for the property titled in the trust at death. A trust that holds nothing when you die avoids nothing, though a pour-over will still moves probate assets into the trust's terms. The Complete Trust Plan includes one deed moving your Florida homestead into the trust (recording additional) and instructions for retitling accounts, plus help making those transfers happen.

Estate Planning Across Florida

We serve clients throughout Florida and beyond. Here are local pages for some of the areas we work in.

Frequently Asked Questions

Common Situations

A couple moved to Florida after retiring in another state. The couple brought wills and powers of attorney signed years earlier. The wills named each other as executor and each left property to adult children. In Florida the home is protected homestead, and the powers of attorney named people who lived far away. The out-of-state documents did not account for the change. A Secure Will Estate Plan, flat fee from $1,950, replaced the wills, updated the powers of attorney with local agents, and added a lady bird deed on the home, plus recording.

A widow with early dementia still lived in her own home. Her daughter held a durable power of attorney that named the daughter as agent. The power of attorney included the authority to convey real property (including the homestead) and was signed with the same formalities as a deed. When the widow needed assisted living, the daughter used the power of attorney to sell the home for $385,000 and apply the proceeds to her mother's care. A properly drafted power of attorney, $350 flat fee, kept the family out of guardianship court.

Sources of Law

• Wills, intestacy, homestead devise, spousal rights: Fla. Stat. ch. 732 (§732.502 execution; §§732.101 to 732.111 intestacy; §§732.4015, 732.401 homestead; §732.2065 elective share with §732.2035 trust inclusion; §732.402 exempt property; §732.702 waiver). Homestead: Art. X §4, Fla. Const.
• Revocable trusts: ch. 736 (§736.0505 (annotated), §736.1109 (annotated)). Powers of attorney: ch. 709 (§709.2104, §709.2108, §709.2202). Health-care directives: ch. 765. Probate fees §733.6171. Federal: IRC §1014. (retrieved 2026-07-11)
• Undue influence: In re Estate of Carpenter as applied in Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1988) (the case retold above); Swiss v. Flanagan, No. 3D20-1500 (Fla. 3d DCA Oct. 13, 2021), applying In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971); Fla. Stat. §732.5165 (a will procured by undue influence is void) and §733.107 (burden of proof). (official slip opinion, retrieved 2026-09-03)

What One Florida Will Contest Shows About Estate Plans

My drafting checklist is short, and every item on it is there because I watched its absence cause a problem. The list is about what people do around a signing rather than about the statutes, and I learned most of it from reading how plans fail in court.

In my practice, I read the will contests as the Florida appellate courts decide them, and a 2021 decision from the Third District is the one I would hand to anyone who believes a plan is finished once the lawyer has drafted it. A businessman in Monroe County, 77 when he died, had three adult children and a companion of many years. His 2001 will, signed with his long-time estate attorney, gave her an out-of-state condominium and gave the children the Florida property. In 2007 he went back to the same lawyer and had a new will drafted, $500,000 to her and the rest to the children. He never signed it. In 2009 he went back again and had another one drafted, a life estate in the condominium and $100,000 to her, with the rest split equally among the children (by every draft he was reducing her share). He never signed that one either. About three years later, in failing health and with her at his side, he asked the same lawyer to leave everything to her and nothing to the children. The lawyer asked for two competency evaluations and then declined to draft it. Two more lawyers came and went. A fourth, picked from a list she supplied, met him in a rehabilitation facility after a hip fracture and again, days after his release, at her home. The will he signed there left her everything except $5,000 to the eldest daughter, named her personal representative, and stated that a lifelong Florida resident lived out of state, which exposed the estate to another state’s inheritance tax. The affidavit signed with it called a divorced man a widower and called his eldest daughter his youngest. The week after he signed, he was diagnosed with dementia.

The youngest daughter contested the 2013 will, the trial court found undue influence, the appellate court affirmed, and the estate passed under the 2001 will. Nobody received the plan he had spent twelve years describing. The two wills drafted at his own direction by his own lawyer, the ones that would have carried his later intent, were sitting unsigned in a file.

In reviewing that case, I have a few take-home points.

The first is the signing. An unsigned draft protects nobody, and a plan the client took home to think about is the most common way I see a good plan fail. The practice pointer is to set the signing date when the draft goes out, and when the client wants changes, to make them and sign the corrected version at that meeting rather than start a second cycle. Avoid leaving a lawyer’s office with an unsigned will you intend to sign later, because later is the part nobody controls.

Second, an owner who wants a plan to hold up keeps the people who benefit from it out of the process. The court in that case counted who arranged the appointments, who supplied the list of lawyers, who sat in the meetings, who faxed edits to the draft, and who knew what the will said before it was signed. Every one of those was the beneficiary, and those are the questions I ask at a first meeting. Part of every planning meeting belongs to the person signing alone, without the beneficiaries in the room, and the file stays with the lawyer, because the missing drafts, invoices and correspondence in the fourth attorney’s records were among the facts the court held against that will. Avoid having the person who inherits pick the lawyer, sit through the meetings, and keep the signed original, even when that person is the one you trust most.

Third, the errors in a document are evidence about how it was made. That will placed a Florida resident out of state, and the affidavit got his marital history and the order of his daughters wrong. Mistakes like those leave a will valid on paper, and a judge still reads them as a picture of the signing, which in that case showed a man who could not check his own paperwork. Ten minutes spent reading every name, date and address in the plan back to the client before the signing, out loud, would have caught all three.

Lastly, and most importantly, look at what the failure cost. The 2009 will he never signed would have stated, in his own lawyer’s file and in his own words, what he wanted for his companion and for his children, and it would have been the document his daughter asked the court to admit. Signing it would have taken an afternoon, and a will-based plan at this firm is a flat fee from $1,200 for one person and $1,950 for a couple. What his family paid instead, by my count, was a trial, an appeal and a court file opened in 2015 that was still open in October 2021, and the plan that came out the other end was the one he had written when he was twelve years younger.

One honest limit applies. Undue influence turns on the facts of the signing, and the same seven factors the court used can point the other way when the person helping is simply the family member who drives. I cannot tell you from a page whether your own plan is safe from a contest, and I would not guess. What I can do at the consultation is look at who is in the room and who is not, and build the signing so that the record answers those questions before anyone asks them.

Kevin D. Klagge, Esq., admitted in Florida since 2012. Each case described above is a decision of a Florida court rather than a matter handled by this firm. Past results do not guarantee a similar outcome.

Updated November 9, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice, and no attorney-client relationship is created. A consultation doesn’t create that relationship; please don’t send confidential details until we’re engaged.