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 with real property or meaningful assets—a revocable living trust. Together these documents decide who manages your money if you’re incapacitated, who makes your medical calls, and who inherits what you leave behind. Without them, Florida law and a probate judge make those decisions for you, and rarely the way you’d have chosen.
I’ve sat with enough Fort Lauderdale families after a death or a sudden stroke to tell you the same thing every time: the gap between “I’ve been meaning to do this” and “we have the documents signed” is where most of the heartache lives. Below is what each document does, which Florida statute governs it, and where high-net-worth households need to go further than the basic kit.
The five documents every Florida adult should have
These five cover the two questions estate planning actually answers—what happens if you can’t act for yourself, and what happens after you’re gone. Skip any one of them and you’ve left a hole that a court, a hospital, or a feuding relative gets to fill.
- Last will and testament — directs who inherits and names a personal representative and guardians for minor children.
- Revocable living trust — holds assets so they pass outside probate and stays private.
- Durable power of attorney — lets someone manage your finances if you’re incapacitated.
- Designation of health care surrogate — names who makes medical decisions for you.
- Living will — states your wishes about life-prolonging procedures.
1. Last will and testament
Your will is the backbone document. It names a personal representative (Florida’s term for an executor), directs how your probate assets are distributed, and—critically for parents—nominates a guardian for minor children. If you die without one, you die intestate, and Florida’s intestacy statutes decide who gets what. That default formula often surprises people: a surviving spouse does not automatically inherit everything when there are children from a prior relationship.
Florida is strict about how a will is signed. Under Fla. Stat. § 732.502, the will must be signed by the testator at the end, in the presence of two witnesses, and those two witnesses must sign in the presence of the testator and of each other. Get that ceremony wrong and the whole document can fail. Florida also does not recognize handwritten (holographic) wills unless they happen to meet the same witnessing rules, and oral wills are not valid here at all.
Always make the will self-proving under Fla. Stat. § 732.503. That’s a short notarized affidavit signed by you and both witnesses at the same time as the will. It means the probate court can admit the will without tracking down your witnesses years later—a small step at signing that saves your family weeks of delay.
For a deeper walk-through of will drafting and execution, see our Florida wills overview.
2. Revocable living trust
A will controls how assets pass through probate. A revocable living trust is built to keep them out of probate entirely. You create the trust, transfer your accounts and real estate into it, and serve as your own trustee while you’re alive and well. When you become incapacitated or die, your named successor trustee steps in immediately—no court petition, no public filing, no months-long wait.
For Florida residents specifically, the trust earns its keep in two ways. First, probate here is a formal, court-supervised process that becomes a public record; a trust keeps your affairs private. Second, if you own property in another state—a mountain cabin, a family lake house up north—a trust avoids a second “ancillary” probate in that state. Snowbirds and dual-state owners benefit enormously.
One caution I repeat constantly: a trust only works if you actually fund it. An unfunded trust is an expensive paperweight. The deed to your home, the brokerage account, the LLC interests—each has to be retitled into the trust’s name. If you’d like to understand the mechanics of trust funding and the trade-offs versus a will-based plan, this overview of trust planning lays out the options clearly. Our affiliated Florida estate planning team handles the funding and deed work as part of every trust engagement.
3. Durable power of attorney
This is the document people understand least and need most. A durable power of attorney (DPOA), governed by Florida’s Power of Attorney Act in Chapter 709, Florida Statutes, lets you appoint an agent to handle your financial and legal affairs—paying bills, managing investments, dealing with the IRS, selling property—if you can’t.
Florida’s rules here are unusually demanding, and a DPOA drafted in another state may not work the way you expect. Two points matter most:
- Florida does not recognize “springing” powers for new documents. Your DPOA is effective the moment it’s signed, not upon some later determination of incapacity. That makes choosing a trustworthy agent essential.
- Certain “superpowers” must be separately initialed. Under § 709.2202, authority to make gifts, create or change beneficiary designations, or alter rights of survivorship has to be specifically enumerated and signed off by you. A generic form usually omits them.
It must be signed by you in the presence of two witnesses and a notary. Without a valid DPOA, the alternative is a court-supervised guardianship—expensive, slow, and public—just to let your spouse pay the mortgage. I’ve watched families spend thousands undoing a problem a $400 document would have prevented.
4. Designation of health care surrogate
This document, authorized under Fla. Stat. § 765.203, names the person who makes medical decisions for you when you can’t speak for yourself—which doctor to see, which treatment to consent to, whether to move to a different facility. It’s the medical counterpart to your financial power of attorney, and the two roles are often filled by the same trusted person.
Florida lets you designate a surrogate with immediate authority if you choose, meaning your surrogate can access records and coordinate care even while you still have capacity—useful for an aging parent who wants an adult child looped in. It requires two witnesses, one of whom cannot be your spouse or a blood relative. Notarization isn’t required, but I usually have it notarized anyway because hospitals outside Florida sometimes ask.
5. Living will
A living will, governed by Fla. Stat. § 765.302, is narrower and more personal. It states your wishes about life-prolonging procedures if you have a terminal condition, an end-stage condition, or are in a persistent vegetative state. It answers the question no surrogate ever wants to guess at: do you want to be kept alive by artificial means, or allowed a natural passing?
The execution rule mirrors the surrogate designation—it must be signed in the presence of two witnesses, at least one of whom is neither your spouse nor a blood relative. A living will doesn’t require notarization. Pairing it with your health care surrogate designation gives your loved ones both a decision-maker and a clear instruction, so they’re carrying out your wishes rather than agonizing over them.
What Florida high-net-worth families need beyond the basics
The five documents above are the floor, not the ceiling. If your estate runs into the millions, owns a business, or includes beneficiaries with special circumstances, the basic kit leaves real exposure—creditor risk, estate tax, divorce, and the loss of public benefits among them. This is where asset protection and tax planning move to the front.
Asset protection and Florida’s homestead advantage
Florida is one of the most debtor-friendly states in the country, and sophisticated planning leans hard on that. Your homestead enjoys constitutional protection from most creditors under Article X, Section 4 of the Florida Constitution—but that same provision sharply restricts how you can leave it. Under Fla. Stat. § 732.4015, if you’re survived by a spouse or a minor child, you generally cannot devise the homestead freely; an attempted gift that violates the rule is simply void, and the property passes by a statutory formula instead.
This is one of the most common traps I see in self-drafted plans. People assume they can leave the house to whomever they like. They can’t, and the trust language has to be drafted around the homestead rules deliberately. Beyond the home, high-net-worth Floridians often layer in tenancy-by-the-entireties titling, LLCs for rental and investment property, and irrevocable trusts to put assets beyond the reach of future creditors.
Irrevocable trusts and tax planning
Florida has no state estate tax and no state income tax, which is a meaningful part of why so many wealthy families relocate here. But the federal estate tax still applies to larger estates. For families above—or approaching—the federal exemption, irrevocable trusts (such as spousal lifetime access trusts, irrevocable life insurance trusts, and grantor-retained annuity trusts) move appreciation out of the taxable estate while keeping the family in control of the timing. These are not DIY instruments; the drafting and the tax elections have to be exactly right.
Special needs and legacy planning
If you have a child or grandchild with a disability, leaving them money outright can disqualify them from Medicaid and Supplemental Security Income. The solution is a properly drafted special needs trust, which lets you provide for a loved one’s comfort and care without cutting off the public benefits they depend on. The same principle applies to beneficiaries with creditor problems, addiction, or shaky marriages—the trust holds and protects, rather than handing over a check.
How these documents work together
Think of your plan as two teams. The incapacity team—your durable power of attorney, health care surrogate, and living will—handles things while you’re alive but unable to act. The legacy team—your will and trust—takes over after death. A complete plan staffs both. The most common mistake I see isn’t a badly drafted document; it’s a missing one, usually the power of attorney, discovered at the worst possible moment.
Florida’s signing formalities also mean these documents should be executed together, properly witnessed and notarized, and then kept somewhere your family can actually find them. A perfect will locked in a safe-deposit box nobody can open is its own kind of problem. If you want to talk through which documents fit your situation, you can reach our Fort Lauderdale office or read more about the local Florida probate process these documents are designed to streamline or avoid.
Frequently asked questions
Do I need a will if I have a living trust?
Yes. Even with a fully funded trust, you should have a “pour-over” will. It acts as a safety net, directing any asset you forgot to title into the trust to pour into it at death, and it’s the only document that can nominate guardians for minor children.
Is a will from another state valid in Florida?
Generally a will validly executed in another state will be honored in Florida, but it may not be self-proving here, which slows probate. Out-of-state powers of attorney are riskier—Florida’s strict rules mean banks and title companies often reject them. After a move, have your full plan reviewed.
How much does an estate plan cost in Florida?
A basic will-based package with the incapacity documents typically runs a few hundred to a couple thousand dollars; a funded revocable trust plan costs more. For high-net-worth families, the relevant comparison is the cost of planning versus the probate fees, estate taxes, and litigation that thorough planning avoids.
What happens if I die without any of these documents in Florida?
Your assets pass under Florida’s intestacy statutes, a court appoints your personal representative and any guardian for minor children, and a guardianship may be needed if you’re incapacitated rather than deceased. The process is slower, more public, and more expensive than a planned estate.
How often should I update my estate plan?
Review it every three to five years and after any major life event—marriage, divorce, a birth, a death, a significant change in assets, or a move to Florida. Tax law changes can also warrant an update, especially for estates near the federal exemption.
Frequently Asked Questions
Do I need a will if I have a living trust?
Yes. Even with a fully funded trust, you should have a pour-over will. It acts as a safety net, directing any asset you forgot to title into the trust to pour into it at death, and it is the only document that can nominate guardians for minor children.
Is a will from another state valid in Florida?
Generally a will validly executed in another state will be honored in Florida, but it may not be self-proving here, which slows probate. Out-of-state powers of attorney are riskier, because Florida’s strict rules mean banks and title companies often reject them. After a move, have your full plan reviewed.
How much does an estate plan cost in Florida?
A basic will-based package with the incapacity documents typically runs a few hundred to a couple thousand dollars; a funded revocable trust plan costs more. For high-net-worth families, the relevant comparison is the cost of planning versus the probate fees, estate taxes, and litigation that thorough planning avoids.
What happens if I die without any of these documents in Florida?
Your assets pass under Florida’s intestacy statutes, a court appoints your personal representative and any guardian for minor children, and a guardianship may be needed if you are incapacitated rather than deceased. The process is slower, more public, and more expensive than a planned estate.
How often should I update my estate plan?
Review it every three to five years and after any major life event such as marriage, divorce, a birth, a death, a significant change in assets, or a move to Florida. Tax law changes can also warrant an update, especially for estates near the federal exemption.
For more on our Florida practice, see our overview of powers of attorney in Florida. Morgan Legal Group's affiliated New York office also handles special needs planning in New York.