A Will Is Not Enough in Florida

You did the hard thing. You answered the questions no one enjoys answering, named the people you love out loud, and signed a will. For many families who sit across from me, that signature is the moment the worry goes quiet. It is handled. I never want to take that feeling away. But in Florida, a will by itself leaves the hardest moments uncovered.

What your Florida will actually does

A will speaks only after you die. It names who inherits, nominates your personal representative (Florida's word for executor), and nominates a guardian for your minor children. Under section 732.502 you sign in front of two witnesses, who sign in your presence and in front of each other.

Now the part that surprises almost everyone. A will does not avoid probate. A will is what opens probate. Whoever holds your original has 10 days after learning of your death to file it with the clerk of court under section 732.901. From then on it is public record, and so is the list of what you owned.

The years before are the years a will cannot reach

The gap that hurts families most has nothing to do with death. A stroke on a Tuesday. A diagnosis at 68 that changes everything by 71. Your daughter calls the bank and brings your will. The bank says no, and the bank is right, because a will has no power while you are breathing. Four documents cover that gap, and all four have to be signed while you still have capacity.

• Durable power of attorney. Section 709.2105 requires two witnesses and a notary, and under section 709.2202 the powers that matter most in a crisis, gifts, beneficiary changes, anything touching a trust, exist only if you signed or initialed next to each one. Since October 1, 2011, section 709.2108 means a new Florida power works the day you sign it or not at all.
• Health care surrogate. Under section 765.202 two adult witnesses sign, the surrogate is not one of them, and yours may act immediately if the document says so.
• Living will. Your instructions on life prolonging treatment under section 765.302, so your surrogate carries out your wishes instead of guessing.
• HIPAA release. A short authorization under 45 CFR 164.508 so the hospital can talk to your family.

Add a preneed guardian designation under section 744.3045 so a judge knows in advance who you would want. Without these, the road is chapter 744: a petition, an examining committee, a hearing, court supervision, annual reports. It is public, it is slow, and it costs many times what the documents would have.

The assets your will never touches

Your 401(k), your IRA, your life insurance and your payable on death accounts do not read your will. They pay whoever is on the form. If that form names someone who died in 2014, or an ex spouse, last year's will does not fix it. A Florida divorce voids most designations naming a former spouse under section 732.703, though not on every account. And under section 744.301, parents may receive no more than $15,000 in total for a minor child without a court appointed guardian of the property.

In Florida, the house has its own rulebook

For most of the families I work with, the house is the plan, and it is the asset a will controls least. Under article X, section 4 of the Florida Constitution and section 732.4015, if you are survived by a spouse or a minor child you cannot leave your homestead to whomever you choose. Section 732.401 decides instead, giving the spouse a life estate with the descendants holding the remainder, unless the spouse elects an undivided one half interest within 6 months. In the right situation a Lady Bird deed (an enhanced life estate deed, with section 732.4017 as part of the framework) keeps control during your life and passes the home without probate.

So when is a trust worth it

Not always, and I will say plainly when it is not. Since July 1, 2026, Florida's simplified probate track under section 735.201 reaches estates up to $150,000, raised from $75,000, current as of August 18, 2026. A trust earns its cost when a beneficiary needs protection, when you own property in another state, or when someone must be able to step in the week you cannot.

What a complete Florida plan looks like

A will, a durable power of attorney with the right powers initialed, a health care surrogate, a living will, a HIPAA release, a preneed guardian designation, beneficiary forms that match the plan, a deed strategy for the homestead, and a trust when your situation calls for one. We put it all in one place for you: the Florida Estate Planning Checklist. Print it and check off what you already have.