Estate Planning in Florida: A Comprehensive Guide

Estate planning is one of the most important financial and legal steps you can take to protect your family’s future and ensure your wishes are carried out after your death. In Florida, estate planning offers considerable flexibility in the disposition and management of property, along with potential income and estate tax benefits. Understanding Florida’s specific requirements and opportunities can help you make informed decisions about your estate plan.

Understanding Estate Planning Tools in Florida

Wills: The Foundation of Estate Planning

In Florida, a will serves as the cornerstone of most estate plans. Every will has two major aspects that must be carefully considered: dispositive provisions that indicate the beneficiaries of your estate and the extent of their interests, and provisions relating to the administration of the estate that establish the nature and extent of the duties and responsibilities of the personal representative.

Florida takes a strict approach to will validity. A will is not valid unless it is executed with the formalities required by Florida law. This strict compliance requirement exists to assure the authenticity of the will and to avoid fraud and imposition in its execution. The creation of a will in Florida requires compliance with certain formalities, with the first and foremost being the witnessed signature of the testator.

The state recognizes various types of wills, including those executed by non-residents. Any will executed by a nonresident of Florida is valid in the state if it was valid under the laws of the state or country where it was executed. Additionally, military personnel have special provisions – any will executed as a military testamentary instrument in accordance with federal law by a person eligible for military legal assistance is valid as a will in Florida.

Trusts: Flexibility and Control

Trusts represent one of the most valuable tools in Florida estate planning because they permit considerable flexibility in the disposition and management of property and, in some instances, provide income and estate tax economies. Much estate planning in Florida involves the use of revocable or living trusts, though some clients may choose testamentary trusts in conjunction with a will rather than a revocable trust for their planning needs.

When considering trusts, it is important to understand that they need not be restrictive. Clients should have the opportunity to choose provisions that create the flexibility they desire. Trusts offer many benefits beyond tax reasons, such as professional management of trust property and continuity of asset management.

Execution Requirements and Formalities

Will Execution in Florida

Florida mandates strict compliance with statutory requirements for will execution. No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law. However, these formalities must be followed precisely, as Florida courts have consistently held that absent the requisite formalities, a will cannot be admitted to probate.

Trust Execution Requirements

Similar to wills, trusts in Florida must meet specific execution requirements. A trust or an amendment thereto must be signed by the settlor in the presence of two attesting witnesses, and those witnesses must also sign the trust or any amendments in the presence of the settlor and of each other. These requirements are strictly construed by Florida courts.

Will Contests and Legal Protections

Florida law provides specific procedures for will contests. In all proceedings contesting the validity of a will, the burden is initially upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit or an oath of an attesting witness can establish prima facie the formal execution and attestation of the will. After this initial burden is met, the contestant must establish the grounds on which the probate of the will is opposed or revocation is sought.

The state also recognizes a presumption of undue influence in certain transactions or events. This presumption implements public policy against abuse of fiduciary or confidential relationships and shifts the burden of proof in appropriate circumstances.

Special Circumstances: Guardianship and Estate Planning

Florida law recognizes that estate planning needs may arise even when someone lacks capacity. The state authorizes guardians to create trusts of property of the ward’s estate and to transfer the ward’s assets for the purpose of estate or tax planning. Florida courts have adopted the substituted judgment standard in determining whether to authorize estate and tax planning for incapacitated individuals.

This standard requires a determination of what the ward would want to do if he or she were competent. Courts consider several criteria in applying this standard: the donative intent of the ward, the permanency of the ward’s condition, the size and nature of the ward’s estate, the needs of the ward and the recipient, those who would inherit the ward’s estate, and the affinity, intimacy, and dependency of the recipient.

A plenary guardian of the property may, after obtaining court approval, perform various estate planning functions including making gifts of the ward’s property to family members for estate and income tax planning purposes, creating or amending revocable trusts or creating irrevocable trusts, executing codicils to maximize charitable deductions, and renouncing or disclaiming interests by succession or transfer.

Trust Modifications and Court Oversight

Florida law provides mechanisms for modifying trusts when circumstances change. Upon application of a trustee or any qualified beneficiary, a court may modify the terms of a trust that is not then revocable under several circumstances: when the purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill; when compliance with the terms would defeat or substantially impair accomplishment of a material purpose due to unanticipated circumstances; or when a material purpose of the trust no longer exists.

In modifying a trust, a court may amend or change the terms of the trust, including terms governing distribution or administration; terminate the trust in whole or in part; direct or permit the trustee to perform acts not authorized or prohibited by the trust terms; or prohibit the trustee from performing acts that are permitted or required by the trust terms.

Key Takeaways for Florida Estate Planning

Estate planning in Florida offers significant opportunities for flexibility and tax efficiency, but it requires careful attention to statutory formalities and requirements. Whether you choose a will-based plan, a trust-based plan, or a combination of both, understanding Florida’s specific requirements is crucial for ensuring your estate plan will be effective and legally valid.

The state’s strict compliance requirements for both wills and trusts underscore the importance of proper execution and documentation. Additionally, Florida’s provisions for guardianship-based estate planning and trust modifications provide important safeguards and flexibility for changing circumstances.

Successful estate planning in Florida requires understanding not just the available tools, but also the specific legal requirements and procedures that govern their use. By taking advantage of Florida’s flexible estate planning laws while ensuring compliance with all formalities, you can create an estate plan that effectively protects your assets and provides for your beneficiaries according to your wishes.

Gilbert Garcia Group is an estate planning law firm based in Tampa. The firm serves clients in the greater Tampa Bay area as well across the State of Florida.