Estate Planning
Estate Planning FAQ
Written by Blake Stewart | Florida Bar No. 84716 | Admitted 2010 | Florida Bankruptcy & Estate Planning Attorney
Estate planning is about protecting your family, preserving your wishes, and preparing for the future. Whether you're considering a will, trust, power of attorney, lady bird deed, or probate avoidance strategy, understanding your options can help you make informed decisions.
Below are answers to some of the most common estate planning questions we receive from individuals and families throughout Florida.
Most Common Estate Planning Questions
These are the questions Florida families ask most often. Click "Learn More" on any topic to explore it in depth.
What Happens If I Die Without a Will in Florida?
If you die without a valid will in Florida, your estate passes under the state's intestate succession laws — not according to your wishes. Under Fla. Stat. § 732.102, a surviving spouse does not automatically inherit everything. If you have children from a prior relationship, your spouse receives only half of your estate; your children from that prior relationship split the other half. Under Fla. Stat. § 732.103, if you have no spouse and no descendants, your estate goes to your parents, then your siblings — in a prescribed order set by statute, not by your intentions. Unmarried partners receive nothing under Florida intestacy law regardless of the length of the relationship. Minor children may require a court-supervised guardianship to manage any inherited assets until they reach age 18, which can be slow, expensive, and public. A properly drafted will — even a straightforward one — puts you in control of every one of those outcomes and removes the uncertainty for everyone you leave behind.
Learn More: What Happens If I Die Without a Will →Do I Need a Trust, or Is a Will Enough?
For many Florida families, a well-drafted will is a solid foundation — but a will alone goes through probate. Formal probate in Florida, governed by Fla. Stat. Chapter 733, requires a mandatory 90-day creditor notice period as a minimum, and most formal administrations take 6 to 12 months and cost roughly 3% of the estate's value in combined attorney and personal representative fees. A revocable living trust under Fla. Stat. Chapter 736 allows assets to transfer to your beneficiaries privately and without court involvement. Trusts also keep your financial affairs out of the public record — unlike a will, which becomes public once probated. Whether a trust makes sense depends on your assets, family situation, and goals. Most clients benefit from both: a trust for the bulk of the estate and a pour-over will to capture anything left outside the trust at death.
Learn More: Revocable Living Trusts →What Is a Lady Bird Deed?
A Lady Bird Deed — formally called an Enhanced Life Estate Deed — is a Florida-recognized estate planning tool that transfers real property to designated beneficiaries automatically upon your death, without going through probate. Unlike a traditional life estate deed, a Lady Bird Deed lets you retain full control of the property during your lifetime: you can sell it, mortgage it, change the beneficiaries, or revoke the transfer entirely without their consent. It preserves Florida's homestead exemption and property tax benefits, does not constitute a completed gift for federal gift tax purposes, and is generally not subject to Florida's Medicaid Estate Recovery Program — making it one of the most effective and cost-efficient probate avoidance tools available for Florida homeowners who want to pass real estate directly to their heirs.
Learn More: Lady Bird Deeds →Can a Trust Avoid Probate in Florida?
Yes — a properly funded revocable living trust is one of the most effective probate avoidance tools available to Florida residents. Assets held in the trust at death transfer directly to beneficiaries under the terms of Fla. Stat. Chapter 736, without court involvement, creditor notice periods, or public filings. The critical word is "funded": a trust only avoids probate for assets that have been properly retitled into the trust's name. Real estate, bank accounts, investment accounts, and other assets must be formally transferred. Assets left outside the trust — even accidentally — may still pass through probate unless they carry a beneficiary designation or are held jointly. The trust document and the funding of the trust are equally important. Working with an attorney to get both right is essential.
Learn More: Revocable Living Trusts →How Do I Avoid Probate in Florida?
Florida offers several tools for passing assets directly to your beneficiaries without court involvement: a revocable living trust under Fla. Stat. Chapter 736, a Lady Bird deed for real estate, beneficiary designations on retirement accounts and life insurance, and payable-on-death or transfer-on-death designations on bank and investment accounts. Most Florida families use a combination of these — no single tool covers every asset type. The most common mistake is creating a trust but never funding it, which means assets still pass through probate despite the paperwork. A complete probate avoidance plan addresses each category of asset you own individually and makes sure every significant asset has a clear transfer mechanism that bypasses the court.
Learn More: How to Avoid Probate in Florida →What Does a Durable Power of Attorney Do?
A Durable Power of Attorney under Fla. Stat. §§ 709.2101–709.2402 authorizes a person you trust — your agent — to manage your financial and legal affairs on your behalf. "Durable" means the document remains effective even if you become incapacitated — which is precisely when it matters most. In Florida, a valid Durable Power of Attorney must be signed by the principal and witnessed by two people before a notary public (Fla. Stat. § 709.2105(2)). Without one, a family member who needs to manage your finances, pay your bills, handle real estate transactions, or access your accounts during a medical crisis may be forced to seek court-appointed guardianship — a process that can take months, cost thousands of dollars, and require ongoing court supervision. A properly drafted Durable Power of Attorney allows your agent to act immediately, without court involvement, within whatever scope of authority you choose to grant.
Learn More: Durable Powers of Attorney →How Often Should I Update My Estate Plan?
Review your estate plan after any major life event: marriage, divorce, the birth or death of a beneficiary, a significant change in assets, the purchase or sale of real estate, or a move to or from Florida. Florida law changes periodically — documents drafted under prior versions of the statutes may not function as intended under current law. As a general practice, reviewing every three to five years is a reasonable baseline even without a triggering event. The most common problem we see is not an outdated will — it's an unfunded trust, an account that still names an ex-spouse as beneficiary, or a power of attorney signed before Florida's current statutory requirements took effect in 2011 that may not be honored by financial institutions today.
Schedule a Review Consultation →All Estate Planning Questions
What Is Estate Planning?
Estate planning is the process of preparing legal documents that control what happens to your assets, your healthcare decisions, and your dependents when you die or become incapacitated. A complete Florida estate plan typically includes a last will and testament, a durable power of attorney, a healthcare surrogate designation, a living will, and — depending on your assets and goals — a revocable living trust and a Lady Bird deed for real property. The goal is to make sure your wishes are followed, your family is protected from unnecessary delay and expense, and the people you trust are legally empowered to act on your behalf when you cannot act for yourself.
What Estate Planning Services Does Stewart Law Offer?
Stewart Law provides flat-fee drafting of wills, living wills, revocable living trusts, durable powers of attorney, healthcare surrogate designations, and Lady Bird deeds for Florida clients. We serve clients statewide from our Melbourne office on the Space Coast. Every document is prepared by Blake Stewart, a Florida-licensed attorney admitted in 2010 — not by paralegals or automated document services. Consultations are available by phone, video, or in person.
What Is a Last Will and Testament?
A last will and testament is a legal document that directs the distribution of your assets after death, names the person responsible for carrying out your wishes (your personal representative, sometimes called an executor), and — critically — designates a guardian for any minor children. Under Fla. Stat. § 732.502, a valid Florida will must be in writing, signed by the testator at the end of the document, and witnessed simultaneously by two individuals who are present at the same time as each other and the testator. A handwritten will that is not properly witnessed is not valid in Florida. A will does not avoid probate — assets passing under a will still go through the court-supervised probate process — but it ensures that probate distributes your estate according to your directions rather than the state's default rules.
Do I Still Need a Will If I Have a Trust?
Yes. Even with a fully funded revocable trust, a will remains important for two reasons. First, a "pour-over will" catches any assets that were not transferred into the trust during your lifetime and directs them into the trust at death, so they are distributed according to your trust's terms. Second, a will is the only document in which you can legally designate a guardian for minor children. No trust document can accomplish that. Most estate plans include both a revocable trust for asset management and probate avoidance, and a pour-over will as a backstop and guardian designation.
What Is a Revocable Living Trust?
A revocable living trust under Fla. Stat. Chapter 736 is a legal arrangement in which you transfer ownership of your assets to a trust you control during your lifetime. You serve as your own trustee and manage the assets exactly as you do today. You can amend or revoke the trust at any time. When you die, your successor trustee distributes the trust's assets directly to your named beneficiaries — without probate, without court involvement, and without creating a public record. The primary advantages over a will are speed (no mandatory waiting periods), privacy (trust terms are not filed in court), and cost savings (no probate fees). A trust also provides continuity if you become incapacitated — your successor trustee steps in without the need for court-appointed guardianship of your assets.
What Is Probate?
Probate is the court-supervised legal process for settling a deceased person's estate. In Florida, formal probate administration is governed by Fla. Stat. Chapter 733 and requires a minimum 90-day creditor notice period, a court-appointed personal representative, and — in most cases — attorney involvement. A straightforward formal administration typically takes 6 to 12 months to complete. For estates with non-exempt assets of $75,000 or less, or where the decedent has been deceased for more than two years, Florida's simplified summary administration under Fla. Stat. § 735.201 may be available. Probate is public — the will and asset inventory become part of the court record. It also generates costs: court filing fees of roughly $345–$405, plus personal representative and attorney fees typically calculated as a percentage of estate value. Assets held in a trust, held jointly with right of survivorship, or with a named beneficiary designation pass outside of probate entirely.
What Is a Durable Power of Attorney?
A Durable Power of Attorney under Fla. Stat. §§ 709.2101–709.2402 is a signed, witnessed, and notarized document in which you (the principal) grant another person (your agent) legal authority to manage your financial and legal affairs. "Durable" means the authority survives your incapacity — distinguishing it from a standard power of attorney, which terminates the moment you lose capacity. The agent can be authorized to manage bank accounts, pay bills, handle real estate transactions, file tax returns, manage investments, and conduct other legal and financial business on your behalf. In Florida, the document must be signed before a notary and witnessed by two people to be valid (Fla. Stat. § 709.2105(2)). It is one of the most critical documents in any estate plan — without it, your family may have no legal authority to help you during a medical or financial crisis without going to court first.
What Is a Living Will?
A living will — formally called an advance directive — is a document governed by Fla. Stat. Chapter 765, Part III that expresses your wishes regarding life-sustaining medical treatment if you become incapacitated and cannot communicate. It tells your medical team and family what interventions you do or do not want if you are in a terminal condition, an end-stage condition, or a persistent vegetative state. A living will does not cover routine medical decisions — it applies only in end-of-life situations where you are unable to speak for yourself. It is not about giving up medical care; it is about ensuring your healthcare reflects your personal values and spares your family from making impossible decisions without knowing your wishes.
What Is a Healthcare Surrogate Designation?
A Healthcare Surrogate Designation under Fla. Stat. Chapter 765, Part II is a document in which you name a person — your surrogate — to make medical decisions on your behalf if you become unable to make or communicate those decisions yourself. Unlike a living will, which expresses specific end-of-life wishes, a healthcare surrogate designation covers a broader range of medical decisions in any situation where you lack capacity. Your surrogate has authority to consent to or refuse treatment, access your medical records, communicate with your healthcare providers, and carry out your documented wishes. A Durable Power of Attorney can authorize financial decisions; a Healthcare Surrogate Designation covers medical decisions. Most complete estate plans include both. Without either document, medical providers may turn to next-of-kin in a sequence defined by statute — which may not reflect who you actually trust to make those decisions.
What Is a Lady Bird Deed?
A Lady Bird Deed — also called an Enhanced Life Estate Deed — is a deed recognized in Florida that allows you to transfer real property to named beneficiaries at your death while retaining full control during your lifetime. You can sell the property, mortgage it, change the beneficiaries, or revoke the transfer at any time without the beneficiaries' knowledge or consent. At your death, the property passes automatically to the beneficiaries you named — without probate, without court involvement, and without the delays and costs of estate administration. Florida is one of only five states that recognizes this type of deed. Key benefits include: the transfer does not affect your homestead exemption or property tax benefits; it is generally not treated as a completed gift for federal gift tax purposes; and it is typically not subject to Florida's Medicaid Estate Recovery Program, making it a useful planning tool for clients who may need Medicaid later in life. For most Florida homeowners who want a simple, cost-effective way to pass real estate to their heirs, a Lady Bird Deed is worth serious consideration.
Can Estate Planning Help Avoid Probate in Florida?
Yes — and for most Florida families, probate avoidance is one of the primary goals of estate planning. The main tools are: a revocable living trust (for most asset types), a Lady Bird deed (for real estate), beneficiary designations on retirement accounts, life insurance, and payable-on-death bank accounts, and joint ownership with right of survivorship. None of these tools avoid probate on their own for all assets — the key is making sure every significant asset has a clear transfer mechanism that bypasses the court process. Assets with no designated beneficiary, no joint owner, and not titled in a trust are the ones that end up in probate. A complete estate plan addresses each category of asset systematically.
What Happens If I Die Without a Will in Florida?
If you die without a valid will, Florida's intestate succession laws under Fla. Stat. Chapter 732 determine who receives your estate. Under § 732.102, a surviving spouse does not automatically inherit everything. If you have children who are not also your spouse's children, your spouse receives only half of your estate. Under § 732.103, if you have no spouse and no children, your estate passes to your parents; if no parents survive you, to your siblings; then to more distant relatives in a specific statutory order. Unmarried partners inherit nothing under intestate law. Minor children who inherit may require court-supervised guardianship of their funds until age 18. The entire estate — regardless of size — must go through probate, with the court appointing an administrator and supervising the distribution. Creating a will does not require significant assets or a complex situation. It requires a decision about who you trust and what you want — and it protects your family from the alternative.
When Should I Update My Estate Plan?
Update your estate plan after any of these events: marriage or divorce; birth or adoption of a child; death of a named beneficiary, personal representative, or agent; a significant change in assets or property; purchase or sale of Florida real estate; a move to or from Florida; or a major change in tax law. Florida's Durable Power of Attorney Act was substantially revised effective October 1, 2011 — documents executed before that date may not be honored by financial institutions under current standards. Beneficiary designations on retirement accounts and life insurance policies override your will and trust; these should be reviewed any time your family situation changes. As a general rule, a full review every three to five years is good practice even without a triggering event.
Is Estate Planning Only for Older Adults?
No. The documents that matter most in an emergency — a Durable Power of Attorney and Healthcare Surrogate Designation — are relevant from the moment you turn 18. Any adult who has assets, a partner, children, or a job needs at minimum a will, a power of attorney, and healthcare documents. Younger clients often delay because they assume estate planning is about large estates or end-of-life decisions. It is not. It is about making sure that if something unexpected happens, the people you trust have the legal authority to act, your children have a named guardian, and your assets go where you intend. The federal estate tax exemption is currently $15 million per person, meaning estate tax is not a concern for the vast majority of Florida families — but the need for basic documents applies to everyone.
How Long Does Estate Planning Take?
A basic estate plan — will, power of attorney, healthcare surrogate, and living will — can typically be completed in one to two weeks from initial consultation. A more comprehensive plan involving a revocable trust, Lady Bird deed, or coordination with financial accounts and beneficiary designations may take two to four weeks depending on the complexity of your assets and how quickly we can gather the necessary information. At Stewart Law, we use a flat-fee structure for standard estate planning documents, so there are no billing surprises. Most clients complete their estate plan in two appointments: one to gather information and discuss your goals, and one to review and sign the documents.
What Should I Bring to an Estate Planning Consultation?
You do not need to bring anything formal to a first consultation. It helps to have a general sense of: the assets you own and how they are titled (individually, jointly, in an LLC, etc.); whether you have existing beneficiary designations on retirement accounts or life insurance; whether you own Florida real estate and how it is currently deeded; the names of the people you would trust to serve as your personal representative, agent under a power of attorney, healthcare surrogate, and — if you have minor children — guardian. You do not need to bring financial statements or exact asset values for a first meeting. The goal of the initial consultation is to understand your family situation and your goals, not to audit your finances.
Why Choose Stewart Law for Estate Planning?
Stewart Law is a focused practice — we handle estate planning, bankruptcy, and contracts. We do not try to be all things to all clients. Every estate planning document is prepared by Blake Stewart directly, a Florida-licensed attorney with more than 15 years of experience who is also a practicing bankruptcy attorney — which means he understands how estate planning and asset protection intersect in ways that a pure estate planning generalist may not. We offer flat-fee pricing for standard estate planning documents, statewide service from our Melbourne office, and consultations available by phone, video, or in person. If your situation has real complexity — significant real estate holdings, a blended family, Medicaid planning concerns, or business succession issues — we will tell you that directly and work through it with you rather than hand you a one-size template.
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This page is for general information only and does not constitute legal advice. Schedule a consultation with Blake Stewart to discuss your specific situation.
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