Every Florida adult needs five core estate planning documents: a last will and testament, a durable power of attorney, a designation of health care surrogate, a living will, and—for most people who own real property or want to avoid probate—a revocable living trust. Together these documents decide who manages your affairs if you can’t, who inherits your assets, and who speaks for you in a hospital. Without them, Florida law makes those decisions for you, often slowly and rarely the way you would have chosen.
I’ve sat across the table from too many families who learned this the hard way. A daughter who couldn’t pay her father’s mortgage because no one held his power of attorney. A surviving spouse blindsided by Florida’s intestacy rules. A blended family torn apart because “we always meant to update the will.” The fix is almost never complicated. It just has to happen before the crisis, not after.
What “estate planning” actually means in Florida
Estate planning isn’t only about death, and it isn’t only for the wealthy. Roughly half of a good plan governs what happens while you’re alive but incapacitated—after a stroke, a serious accident, or a dementia diagnosis. The other half governs what happens at death. Florida treats these as separate legal problems with separate documents, and a plan that solves only one leaves a gaping hole.
Here’s the distinction that trips people up. A will does nothing while you’re alive. It has zero legal force until you die and a court admits it to probate. So if your plan is “I have a will, I’m covered,” you are not covered for the incapacity half of life—the half that’s statistically far more likely to land on you first.
The five documents every Florida adult should have
1. Last Will and Testament
Your will names who inherits your probate assets, names a personal representative (Florida’s term for an executor), and—critically for parents—names a guardian for minor children. If you die without one, you die “intestate,” and Florida Statutes Chapter 732 distributes your estate by a fixed formula that may not match your wishes at all.
Execution matters enormously here. Under Florida Statute § 732.502, a valid will must be signed by the testator at the end, in the presence of two witnesses, who then sign in the presence of the testator and each other. Get the formalities wrong and the document can be thrown out entirely. I always recommend making the will “self-proving” under § 732.503—a notarized affidavit signed by you and both witnesses—because it lets the will be admitted to probate without tracking down those witnesses years later. That small step saves enormous headaches.
One Florida-specific trap: a personal representative generally must be either a Florida resident or a close relative (spouse, child, parent, sibling, and certain others) under § 733.304. Naming your out-of-state best friend as executor often doesn’t work the way clients expect.
2. Durable Power of Attorney
This is the document that lets someone you trust—your “agent”—handle your finances if you can’t. Pay bills, manage accounts, deal with the IRS, sell or refinance property. Florida overhauled its power of attorney law in 2011, and the current rules in Chapter 709 are demanding.
Two things every Floridian should know. First, Florida no longer recognizes “springing” powers of attorney that activate only upon incapacity—your POA is effective when signed (§ 709.2108), so you must choose your agent with real care. Second, the document must be signed in the presence of two witnesses and a notary under § 709.2105, and certain “superpowers”—like making gifts or changing beneficiary designations—are only granted if you separately initial them. A generic form pulled off the internet usually fails these requirements, and a bank or title company will reject it.
3. Designation of Health Care Surrogate
Governed by Florida Statute § 765.202, this names the person who makes medical decisions for you when you can’t make them yourself. It must be signed in the presence of two adult witnesses, and the person you name as surrogate cannot be one of those witnesses. Since 2015, Florida has also allowed you to give your surrogate authority that takes effect immediately—useful when you want a spouse to access records or consult with doctors before any formal finding of incapacity.
Pair this with a HIPAA authorization so your surrogate can actually see your medical records. Hospitals will stonewall an agent who can’t prove their authority, no matter how clear your intent was.
4. Living Will
People conflate the living will with the surrogate designation, but they answer different questions. The surrogate designation says who decides. The living will, governed by § 765.302, says what you want—specifically your instructions about life-prolonging procedures if you have a terminal condition, an end-stage condition, or are in a persistent vegetative state. It’s the document that spares your family from guessing whether to keep a ventilator running. Having both means your surrogate has authority and a written compass to follow.
5. Revocable Living Trust
Not strictly mandatory, but for most Florida homeowners and anyone with meaningful assets, a revocable living trust is the workhorse of a modern plan. Assets you transfer into the trust during your lifetime pass to your beneficiaries outside of probate—privately, without court supervision, and without the months (sometimes years) and cost that Florida formal administration can involve.
A trust also provides continuity if you become incapacitated: your named successor trustee simply steps in to manage trust assets, no court proceeding required. For families with property in more than one state, a trust avoids a separate “ancillary” probate in each one. To learn how trusts function as the centerpiece of a layered plan, our colleagues at Morgan Legal break down the mechanics on their trusts overview.
Why high-net-worth and asset-protection-minded Floridians need more
The five documents above are the floor, not the ceiling. If you have significant wealth, business interests, or specific protection goals, your plan should go further. A few situations I see constantly in South Florida:
- Federal estate tax exposure. Florida has no state estate or inheritance tax—a genuine advantage—but the federal estate tax still applies to larger estates. Irrevocable trusts, lifetime gifting strategies, and proper titling can move assets out of your taxable estate before the next scheduled change in the exemption.
- Asset protection. Florida’s homestead protection (Article X, Section 4 of the state constitution) and its generous exemptions for tenancy-by-the-entireties property, annuities, and life insurance are powerful—but they have to be structured correctly. Irrevocable and domestic asset protection trusts add layers for professionals and business owners exposed to liability.
- Beneficiaries who need protection. A child with creditor problems, a spendthrift heir, or a loved one with a disability all call for a specialized trust. For a beneficiary receiving government benefits, an outright inheritance can be catastrophic—it can disqualify them from Medicaid and SSI. The right vehicle is a special needs trust, which preserves eligibility while still improving that person’s quality of life.
- Business succession. If you own a closely held business, your operating agreement, buy-sell agreement, and estate plan all have to speak to each other. When they contradict, litigation follows.
None of this is one-size-fits-all. The strategy that protects a retired physician with a $12 million estate looks nothing like the plan for a young family that mostly needs guardianship designations and a homestead. Our Florida office walks high-net-worth clients through these layers in our estate planning practice.
How these documents work together
Think of the plan as a relay. While you’re healthy, you hold the baton. If you lose capacity, your durable power of attorney takes over your finances and your health care surrogate (guided by your living will) takes over medical decisions. When you die, those documents expire, and your will and any trust take over the handoff to the next generation. A gap in any one of those legs and the baton drops—usually into the lap of a Florida probate or guardianship court, which is the slowest, most expensive runner of all.
This is also why DIY kits so often fail. They produce documents in isolation, with no one checking that beneficiary designations on your retirement accounts, the titling of your home, and your trust funding all point the same direction. A 401(k) beneficiary form beats your will every single time. If they conflict, the form wins—and the family lawsuit begins.
Getting it done
You don’t need to do everything at once, but you should do the incapacity documents first—they protect the version of you that’s most likely to need help. Then build out the death-side plan. Review everything after any major life event: marriage, divorce, a new child, a move to Florida, a big change in net worth, or the death of someone named in your documents.
If you’re not sure where your plan stands, start with the basics covered on our wills page and our overview of Florida probate, then bring your questions to a consultation. You can reach our office here. Twenty years of probate files have taught me the same lesson over and over: the cheapest, easiest day to fix your estate plan is always today.
Frequently Asked Questions
What happens if I die without a will in Florida?
You die intestate, and Florida Statutes Chapter 732 controls who inherits. If you’re married with no descendants, your spouse generally takes everything; with descendants from another relationship, the estate is split, which often surprises blended families. You also lose the chance to name your personal representative and a guardian for minor children—the court decides instead.
Is a power of attorney still valid in Florida if it 'springs' upon incapacity?
No. Since Florida’s 2011 power of attorney overhaul, the state no longer recognizes new springing powers of attorney. Under Chapter 709, a properly executed durable power of attorney is effective when signed, so you must choose a trustworthy agent and execute the document with two witnesses and a notary as required by § 709.2105.
What's the difference between a living will and a health care surrogate designation?
They answer different questions. A designation of health care surrogate (§ 765.202) names WHO makes your medical decisions when you can’t. A living will (§ 765.302) states WHAT you want regarding life-prolonging procedures if you have a terminal or end-stage condition or are in a persistent vegetative state. Most people should have both so their chosen decision-maker has clear written instructions to follow.
Do I need a revocable living trust if I already have a will?
Often yes. A will must pass through Florida probate, which is public, can take months, and costs money. Assets held in a properly funded revocable living trust pass to your beneficiaries outside probate and let a successor trustee manage them if you become incapacitated. For homeowners, property in multiple states, or anyone valuing privacy, a trust usually pays for itself.
Does Florida have an estate tax?
No. Florida imposes no state estate tax or inheritance tax, which is a real advantage. However, the federal estate tax still applies to larger estates. High-net-worth families should plan around the federal exemption using strategies like irrevocable trusts and lifetime gifting, especially ahead of scheduled changes to the exemption amount.