Estate Planning

What Happens Without an Estate Plan in Florida?

Many people delay estate planning, assuming they have time or that their family will simply "figure it out." The reality is far more complicated and can be devastating for the people left behind.

Florida's Intestacy Laws Decide for You

If you die without a will in Florida, the state's intestacy laws determine who receives your assets. These laws may not match your wishes at all:

• Stepchildren receive nothing unless legally adopted
• Long-term partners without marriage have no inheritance rights
• Estranged relatives may inherit over close friends or caregivers

Your Minor Children Need Protection

Without a will naming a guardian, upon the passing of a surviving parent, a court typically decides who raises your children. This decision may go to a relative you would never have chosen, or could result in lengthy court contests between family members while your children wait in uncertainty.

Incapacity Can Be Worse Than Death

Without proper planning documents, if you become incapacitated due to illness or accident, your family cannot access your accounts, pay your bills, or make medical decisions on your behalf. They would need to petition the court for guardianship, a costly, time-consuming, and public process. This can often be avoided by a Durable Power of Attorney and a Healthcare Surrogate Designation.

Lady Bird Deeds for Florida Homesteads

For clients who want to keep their home out of probate without creating a full trust, Florida recognizes "Lady Bird" deeds (enhanced life estate deeds). Named after the wife of President Lyndon B. Johnson, this powerful estate planning tool allows you to transfer your home to beneficiaries upon death while retaining full control during your lifetime.

What Makes a Lady Bird Deed Different

A Lady Bird deed is an enhanced life estate deed that provides significantly more flexibility than a traditional life estate deed. The critical difference lies in what you can do during your lifetime:

• Sell or mortgage the property without needing consent from your beneficiaries (called "remaindermen")
• Revoke the deed entirely and change your mind about who inherits the property
• Keep all rental income and make all decisions about the property
• Retain homestead exemption and all property tax benefits during your lifetime

With a traditional life estate deed, you would need your beneficiaries to sign off on any sale or mortgage, which can create serious problems if they refuse, become incapacitated, or cannot be located.

Benefits of Lady Bird Deeds in Florida

• Probate avoidance: Upon your death, the property easily transfers to your named beneficiaries without going through probate court
• Medicaid protection: Lady Bird deeds are not considered a transfer of assets for Medicaid eligibility purposes and are not subject to the five-year lookback period. The property is also protected from Medicaid estate recovery after death
• Stepped-up tax basis: Your beneficiaries receive the property at its fair market value as of your death, not what you originally paid. This can eliminate significant capital gains taxes when they sell
• Homestead protection: Your homestead exemption and property tax benefits remain intact during your lifetime
• No gift tax: Because you retain control and can revoke the deed, creating a Lady Bird deed is not a completed gift for tax purposes
• Simplicity: Less complex and less expensive than creating and funding a revocable living trust

Is a Lady Bird Deed Right for You?

Lady Bird deeds work particularly well for:

• Single or widowed individuals with no minor children who want simple probate avoidance
• Property owners who may need to sell or refinance in the future

However, a Lady Bird deed only covers the specific property named in the deed. If you have multiple properties or significant non-real estate assets, a revocable living trust may be a more comprehensive solution. We can help you evaluate which approach best fits your complete estate planning goals.

Probate Avoidance in Florida

Many Florida families choose trust-based estate plans to avoid the delays, expenses, and public nature of probate. A properly funded revocable living trust can transfer assets to your beneficiaries without court involvement.

Joint Tenancy with Right of Survivorship

Property held in joint tenancy with right of survivorship (JTWROS) passes automatically to the surviving owner at death, bypassing probate. JTWROS is available for real estate, bank accounts, investment accounts, and other forms of property.

Florida treats joint ownership differently from many other states. Under Florida law, the right of survivorship is not presumed when property is held by two or more owners. The deed, account agreement, or other instrument of title must expressly state that the owners hold the property "as joint tenants with right of survivorship" or similar language. Without that express designation, the owners are treated as tenants in common, and each owner's share passes through their estate at death.

Joint deposit accounts are an exception. Florida law presumes a multi-party deposit account (checking, savings, certificates of deposit) carries the right of survivorship unless the account contract states otherwise. Account paperwork should still be reviewed to confirm the designation is in place.

Tenancy by the Entireties

Florida married couples have an additional option called tenancy by the entireties (TBE). TBE carries the right of survivorship like JTWROS and adds an important layer of creditor protection: an individual creditor of one spouse generally cannot reach property held by both spouses as tenants by the entireties. Only a creditor of both spouses jointly can reach the asset. For Florida real estate titled jointly to a married couple, TBE is presumed unless the deed indicates otherwise.

When to Update Your Florida Estate Plan

Estate planning is not a one-time event. We recommend reviewing your plan every three to five years, or immediately after any major life event.

Life Events That Require Updates

• Marriage or divorce - Florida does not automatically revoke bequests to ex-spouses in all situations
• Birth or adoption of children or grandchildren - New family members should be specifically named
• Death of a beneficiary or fiduciary - You need alternate designations
• Significant changes in assets - Major purchases, sales, or inheritances
• Moving to or from Florida - State laws differ significantly
• Changes in health - Especially conditions affecting decision-making
• Changes in relationships - If your designated agents are no longer appropriate

Florida Healthcare Directives

Healthcare directives ensure your medical wishes are followed when you cannot communicate them yourself. Florida recognizes two primary documents for healthcare planning.

Healthcare Surrogate Designation

This document names someone to make medical decisions on your behalf whenever you are unable to do so, not just at end of life. Unlike a living will, your healthcare surrogate can respond to situations you may not have anticipated.

Declaration of Living Will

A Florida Declaration of Living Will states your wishes regarding life-prolonging procedures if you are in a terminal condition, end-stage condition, or persistent vegetative state. It guides your healthcare surrogate and physicians when facing difficult end-of-life decisions.