New to estate planning? You’re in the right place. A living trust is a legal document that holds your family’s assets so they pass directly to your loved ones — no probate court, no delays, no public record. That’s the core idea.
If you’re just starting to figure this out, I’d suggest reading Having the Estate Planning Talk with Your Parents first — it walks through the whole picture and how to get the conversation started. Then come back here for the Florida-specific rules.
Already know the basics? Keep scrolling — everything below is specific to Florida.
You’re not alone in this. As someone who went through the estate planning process with my own aging parents — right here in Florida — I know the weight of these conversations. The awkwardness, the guilt, the fear that you’re not doing enough or doing it too late. Take a breath. You’ve found the right place, and Florida actually gives you some of the strongest protections in the entire country.
Here’s what most people don’t realize: Florida’s homestead laws are among the most powerful in the nation. Your parents’ home has constitutional protection from creditors with no dollar cap. The state has no income tax, no estate tax, and no inheritance tax. And tools like the Lady Bird deed let families avoid probate on real estate without even setting up a trust. Florida isn’t just a good state for estate planning — it’s one of the best.
But Florida also has rules that trip families up. The biggest one: you cannot freely leave your home to whoever you want if you have a surviving spouse or minor child. That catches people off guard, and it’s one of the reasons a proper estate plan matters so much here.
Here’s everything you need to know about estate planning in Florida — no legal jargon, just clear answers from a son who’s been through it.
Two Trust Types in Florida
Florida’s trust law is governed by the Florida Trust Code (F.S. Chapter 736), which took effect July 1, 2007 and is approximately 60% based on the Uniform Trust Code. It’s a well-developed body of law, and Florida is increasingly recognized as one of the premier trust jurisdictions in the country. Here’s what you need to know about the two main types:
Revocable Living Trust
- The most common estate planning tool in Florida — avoids probate entirely for assets titled in the trust
- Remains completely private (probate records in Florida are public, though inventories are confidential)
- Trust administration typically completes in weeks vs. 12-18 months for formal probate
- You maintain full control — revocable and amendable at any time during your lifetime
- No trust registration required in Florida — your trust stays a private document
- Provides incapacity protection — successor trustee steps in without court-supervised conservatorship
Irrevocable Trust
- Once established, you give up control — that’s the trade-off for the benefits
- Removes assets from your taxable estate for federal estate tax purposes
- Asset protection from creditors, lawsuits, and divorce proceedings
- Florida imposes no state income tax on trust income — a major advantage over states like California or New York
- Dynasty trusts can last up to 1,000 years in Florida (F.S. 689.225, amended 2022)
- Trust decanting available (F.S. 736.04117) — allows modification by transferring to a new trust with updated terms
Florida has no trust registration requirement — your trust remains a private document. When a trustee needs to prove their authority, they can present a Certification of Trust rather than disclosing the full trust terms. And because Florida has no state income tax, trusts with Florida situs avoid state-level income taxation entirely — a major reason high-net-worth individuals from states like New York and California move their trust situs to Florida.
Florida Rules at a Glance
Probate Rules
- Summary administration: Available when non-exempt assets are $75,000 or less, OR decedent died more than 2 years ago (F.S. 735.201)
- Formal administration timeline: 12-18 months typical; 6-month minimum (creditor claim period)
- Probate cost range: Attorney fees follow a statutory schedule — 3% on first $1M, 2.5% on $1M-$5M, 2% on $5M-$10M (F.S. 733.6171). Personal representative receives the same fees.
- Probate is public record — though inventories and accountings are confidential to interested parties
- Disposition without administration: Available for estates with only exempt property and minimal non-exempt personal property (F.S. 735.301)
Tax Rules & Property
- No state income tax (constitutionally prohibited — Art. VII, Sec. 5(a))
- No state estate tax (repealed effective January 1, 2005)
- No state inheritance tax (Florida has never imposed one)
- Common law (equitable distribution) state — not community property
- Community Property Trust Act (2021) — allows married couples to opt in for double step-up in basis
- Elective share: Surviving spouse is entitled to 30% of the broadly-defined “elective estate” (F.S. 732.201)
Florida’s Homestead Exemption: The Most Powerful in the Nation
This is what makes Florida truly unique. The homestead exemption is written into the Florida Constitution (Article X, Section 4) and provides protections that no other state can match. Your parents’ home — regardless of value — is protected from creditors, and it receives special treatment in estate planning.
What the homestead exemption protects:
- No dollar cap. A $5 million waterfront home receives the same constitutional protection as a $200,000 condo. This is unlimited.
- Acreage limits: Inside a municipality: up to one-half acre. Outside a municipality: up to 160 contiguous acres.
- Creditor protection: Homestead property is exempt from forced sale under process of any court. No judgment, decree, or execution can become a lien on homestead — with only three narrow exceptions: property taxes, mortgages (purchase/improvement/repair obligations), and mechanic’s liens.
- Survives death: The protection extends to the surviving spouse and heirs.
The Catch: Homestead Devising Restrictions
This is the rule that catches Florida families off guard. Under Article X, Section 4(c) of the Florida Constitution and F.S. 732.4015, you cannot freely devise your homestead if you are survived by a spouse or minor child.
Here’s how it works:
- Surviving spouse + minor child: Homestead cannot be devised at all — not even to the surviving spouse. It descends by operation of law.
- Surviving spouse, no minor child: Homestead may only be devised to the spouse. It cannot be left to children, siblings, charity, or anyone else (unless the spouse waives this right).
- No surviving spouse, minor child: Homestead cannot be devised away from the minor child.
- No surviving spouse, no minor child: Homestead can be devised to anyone.
If the homestead owner dies without a valid devise (intestate):
- Surviving spouse + descendants: The spouse receives a life estate, with a vested remainder to the descendants. The spouse may elect instead to take an undivided one-half interest as tenant in common (F.S. 732.401). This election must be filed within 6 months of death.
- Surviving spouse, no descendants: Spouse takes fee simple ownership.
- No surviving spouse: Descends to lineal descendants per stirpes.
Why this matters for planning: Many Florida families assume they can leave their home to whomever they choose in their will or trust. They can’t — not without the surviving spouse’s written consent (typically in the form of a valid waiver, prenuptial agreement, or postnuptial agreement). This is one of the strongest arguments for working with a Florida estate planning attorney.
Lady Bird Deed: Florida’s Probate Avoidance Tool for Real Estate
A Lady Bird deed (enhanced life estate deed) is one of the most powerful — and underused — estate planning tools in Florida. It lets you transfer real property to beneficiaries at death without probate, while keeping full control during your lifetime.
How it works:
- The grantor transfers a remainder interest to named beneficiaries while retaining a life estate with enhanced powers — the right to sell, mortgage, lease, or revoke the transfer entirely, without needing the beneficiaries’ consent
- At death, if the property hasn’t been sold or the deed revoked, ownership passes automatically to the beneficiaries — no probate, no court involvement
- Must be signed in the presence of two witnesses and acknowledged before a notary public (F.S. 689.01)
Key advantages:
- Probate avoidance: Property passes outside of probate entirely
- Medicaid safe: Because the grantor retains full control, a Lady Bird deed does not count as a transfer for Medicaid’s 5-year look-back rule
- No Medicaid estate recovery: Florida’s Medicaid estate recovery is limited to the probate estate. Lady Bird deed property isn’t in the probate estate.
- Homestead exemption preserved: The grantor maintains their homestead tax exemption during life
- Full stepped-up basis: Beneficiaries receive the property at current market value for capital gains purposes
- Not a completed gift: Does not trigger federal gift tax reporting
Limitations to be aware of:
- No statutory basis: Lady Bird deeds in Florida are recognized through case law and practice standards, not statute. This hasn’t prevented widespread use, but it means careful drafting is essential.
- Homestead devising restrictions still apply: If the grantor is survived by a spouse or minor child, the constitutional restrictions on devising homestead may complicate or override the Lady Bird deed.
- Only 5 states recognize Lady Bird deeds: Florida, Texas, Michigan, West Virginia, and Vermont.
Lady Bird deed vs. living trust: A Lady Bird deed is a simpler, lower-cost option for a single property. But it only covers that one property — it doesn’t protect bank accounts, investments, or other assets, and it doesn’t provide incapacity protection. For most families with more than just a home, a living trust is the more complete solution. Many Florida attorneys use both: a trust for the overall plan and a Lady Bird deed as a backup for the homestead.
Tenancy by the Entirety: Florida’s Married-Couple Shield
Florida provides one of the strongest versions of tenancy by the entirety (TBE) in the country. It applies to both real property and personal property — including bank accounts, investment accounts, and tangible personal property.
- Automatic for married couples: When married couples take title to real property together, Florida presumes TBE. Bank accounts held jointly by spouses are also presumed TBE.
- Creditor protection: A creditor with a judgment against only one spouse cannot reach TBE property. The creditor must have a judgment against both spouses to attach TBE assets.
- Survivorship: When one spouse dies, the entire property passes automatically to the surviving spouse — no probate needed.
- Federal exception: The IRS can reach TBE property for federal tax debts of one spouse (United States v. Craft, 535 U.S. 274).
TBE and trust planning: Whether TBE protection survives transfer into a joint trust is still developing. In In re Romagnoli (2021), a Florida bankruptcy court held that TBE property contributed to a joint trust retained its TBE character and remained protected. But careful drafting is required — discuss this with your estate planning attorney.
Official Sources
Florida Statutes Online · Florida Court Clerks — Probate Records · The Florida Bar · Florida Department of Revenue · Florida Bar — Advance Directives · Florida Bar — Power of Attorney
What Estate Planning Costs in Florida
Florida costs are moderate compared to high-cost states like California and New York, though South Florida metros run higher than the state average. The good news: compared to what probate costs here, creating a trust is straightforward math.
| What You’re Paying For | Typical Range in Florida | When You’d Use It |
|---|---|---|
| Simple living trust (individual) | $1,500 – $3,500 | Single person, straightforward assets |
| Living trust (married couple) | $2,500 – $5,000 | Married, joint or separate trusts |
| Full estate plan package (trust + will + POA + healthcare directive) | $2,000 – $6,000+ | Most families — this is what you actually need |
Geographic variation matters: South Florida (Miami, Fort Lauderdale, Boca Raton, Palm Beach) runs highest — $250-$500/hour for experienced estate planning attorneys, with flat fees at the top of the range. Tampa, Orlando, and Jacksonville: $250-$350/hour, moderate flat fees. Smaller markets and rural areas: lower overhead, lower fees. Most Florida estate planning work is billed on a flat-fee basis.
The comparison that matters:
| Estate Value | Probate Cost (Attorney + PR Fees) | Trust Cost (One-Time Creation) | You Save |
|---|---|---|---|
| $500,000 | ~$30,000 (3% x 2) | $2,500-$5,000 | $25,000-$27,500 |
| $1,000,000 | ~$60,000 (3% x 2) | $3,000-$6,000 | $54,000-$57,000 |
| $2,000,000 | ~$95,000 (blended rate x 2) | $4,000-$7,000 | $88,000-$91,000 |
Note: Florida’s statutory fee schedule allows the attorney and personal representative to each receive the same percentage. Many family-member personal representatives waive their fee, which cuts probate costs roughly in half. Even so, the savings from a trust are substantial.
Want to understand exactly what you’ll pay? Many Florida estate planning attorneys offer free or reduced-cost initial consultations. The Florida Bar’s Lawyer Referral Service provides 30-minute consultations for $25 or less. Find Florida estate planning attorneys below.
With a Trust vs. Without (Probate) in Florida
| Factor | With a Living Trust | Without (Probate) | Why It Matters |
|---|---|---|---|
| Timeline | Weeks to a few months | 12-18 months (6-month minimum creditor period) | Your family waits over a year for assets to transfer |
| Cost | $2,000-$6,000 (one-time trust creation) | 3-6% of estate value in attorney + PR fees (statutory schedule) | Comes directly out of what your family inherits |
| Privacy | Completely private | Wills and most filings are public record | Anyone can look up what your parents owned and who receives it |
| Court involvement | None | Required — formal administration through circuit court | Multiple court filings and potential hearings over 12-18+ months |
| Homestead | Trust can hold homestead (if properly drafted) | Subject to constitutional devising restrictions | Improper planning can force a life estate the surviving spouse didn’t want |
| Incapacity protection | Successor trustee steps in seamlessly | Court-supervised guardianship needed | Guardianship is expensive, public, and emotionally difficult |
Small Estate Shortcuts
Florida offers simplified alternatives to full probate, but they have strict limits:
- Summary administration (F.S. 735.201): Available when non-exempt assets total $75,000 or less, OR the decedent died more than 2 years ago (regardless of value). Exempt property — including homestead — is not counted toward the $75,000 limit. Faster and less expensive than formal administration, but still requires a court petition.
- Disposition without administration (F.S. 735.301): For estates consisting essentially of exempt property plus minimal non-exempt personal property that doesn’t exceed funeral expenses and final medical bills. Informal process — no formal court proceeding required.
Florida’s Community Property Trust Act (2021)
Although Florida is a common law (equitable distribution) state, it created an important option in 2021. The Florida Community Property Trust Act (F.S. 736.1501-736.1512) allows married couples to create a trust that characterizes assets as community property — unlocking the potential for a full double step-up in cost basis when the first spouse dies.
Why this matters: In common law states, only the deceased spouse’s half of jointly-held property normally receives a stepped-up basis. With a community property trust, both halves may receive the step-up — potentially eliminating capital gains taxes on decades of appreciation. For a couple that bought their home for $150,000 and it’s now worth $800,000, the difference could be tens of thousands in avoided capital gains taxes.
Requirements: Must be signed by both spouses, must include specific cautionary language, must expressly declare itself a community property trust, and must have at least one qualified trustee. SB 262 (2026) confirmed that transferring homestead into a community property trust does not trigger property tax reassessment.
Important caveat: As of this writing, the IRS has not issued formal guidance confirming the double step-up for Florida Community Property Trusts. Practitioners operate with a reasonable legal basis but in a gray area. Discuss this with your estate planning attorney and tax advisor.
Estate Planning Readiness Checklist for Florida
Estate Planning Readiness Checklist — Florida
Check each item you feel confident about. Your progress is saved automatically.
Most families begin exactly where you are. Here are the best next steps:
- What Is a Living Trust? — the complete beginner's guide
- Having the Estate Planning Talk — how to start the conversation
- How to Avoid Probate — why this matters
You have a solid foundation. Fill in the remaining gaps:
- Funding Your Trust — how to retitle assets
- The 5 Documents Every Family Needs
- Estate Tax & Gift Tax Guide
You understand the fundamentals and you're prepared to work with a professional. The next step is finding an estate planning attorney who knows Florida law.
Common Estate Planning Mistakes in Florida
Florida’s constitution prohibits you from leaving your homestead to anyone other than your surviving spouse or minor child if either exists. You cannot devise your home to your adult children, a trust, or a charity if you have a surviving spouse — regardless of what your will or trust says.
Florida is one of only five states that recognises Lady Bird deeds (enhanced life estate deeds). This powerful tool lets you transfer your home at death without probate while keeping full control during your lifetime — and it can protect Medicaid eligibility.
Florida offers an unlimited homestead exemption — your primary residence is protected from most creditors regardless of value. Understanding how this interacts with your trust is essential.
A trust only avoids probate for assets that have been retitled into it. An unfunded trust is just an expensive stack of paper. Real estate, bank accounts, and investments all need to be moved into the trust’s name.
A will does not avoid probate — it goes through it. A will tells the probate court what you want, but the court still controls the process. Only a trust, joint ownership, beneficiary designations, and certain deeds bypass probate entirely.
The best way to avoid these mistakes? Work with an estate planning attorney who knows Florida law. A qualified attorney will catch the state-specific issues that generic online advice misses.
Other Important Planning Tools in Florida
Healthcare Surrogate Designation & Living Will
Florida uses two separate documents for healthcare decisions. A Designation of Health Care Surrogate (F.S. 765.201-765.205) names someone to make medical decisions when you’re incapacitated — it applies any time you cannot communicate, not just end-of-life situations. A Living Will (F.S. 765.301-765.309) provides written instructions about life-prolonging procedures when you’re in a terminal condition, end-stage condition, or persistent vegetative state. Both require two witnesses (at least one of whom is not a spouse or blood relative). Florida also recognizes the POLST (Physician Orders for Life-Sustaining Treatment) for individuals with advanced illness — a medical order form signed by a physician, not a legal document.
Learn more about healthcare directives →
Durable Power of Attorney
Florida’s Durable Power of Attorney Act (F.S. Chapter 709, Part II) requires the document to be signed by the principal, witnessed by two people, and acknowledged before a notary public. Important: Florida does not allow “springing” powers of attorney (those that only take effect upon incapacity) for documents executed on or after October 1, 2011. The POA is effective immediately or it’s ineffective. Certain critical powers — making gifts, creating or modifying trusts, changing beneficiary designations, and several others — must be specifically enumerated and separately initialed by the principal (F.S. 709.2202). Without that specific grant, your agent cannot exercise those powers.
Learn more about powers of attorney →
Long-Term Care Considerations
Florida Medicaid covers long-term nursing home care, but eligibility requires meeting strict asset and income limits. The Medicaid look-back period is 5 years — any transfers for less than fair market value within that window can trigger a penalty period. Florida’s Medicaid estate recovery is limited to the probate estate, which is why tools like Lady Bird deeds and living trusts (which pass property outside probate) are critical components of long-term care planning. Irrevocable trusts established well in advance of needing care can protect assets, but the rules are complex and timing matters.
Learn more about long-term care planning →
Find a Florida Estate Planning Attorney
Find a Florida Estate Planning Attorney
Florida’s homestead rules, devising restrictions, Lady Bird deeds, and tenancy by the entirety protections create opportunities that most states don’t offer — but they also create traps for families who try to plan without understanding the nuances. A qualified Florida estate planning attorney can help you take full advantage of what this state provides.
Use the directories below to find a qualified estate planning attorney in your area, or email us and we’ll point you in the right direction.
Where are you in this journey?
- My parents are getting older — just starting to think about this
- We need a plan now — ready to take action
- Settling an estate — dealing with a parent’s passing
Florida attorney directories:
- The Florida Bar — Lawyer Referral Service (1-800-342-8011; 30-minute consultation for $25 or less)
- The Florida Bar — Find a Lawyer
- American College of Trust and Estate Counsel (ACTEC) — Find a Fellow
- National Academy of Elder Law Attorneys (NAELA)
Questions to Ask Before You Hire a Florida Estate Planning Attorney
- How many estate plans do you create per year, and what percentage of your practice is estate planning?
- Do you specialize in estate planning, or is it one of many practice areas?
- What’s included in your flat fee (trust, pour-over will, POA, healthcare surrogate designation, living will, trust funding)?
- Will you help with funding the trust — retitling real estate deeds, bank accounts, and investments?
- How do you handle Florida’s homestead devising restrictions for married clients?
- Do you recommend a Lady Bird deed for the homestead in addition to the trust?
- How do you handle tenancy by the entirety property when transferring assets into a trust?
Recent Florida Updates
- June 2025 — SB 262 (Trust Law Changes): Confirmed that transferring homestead into a community property trust does not trigger property tax reassessment (F.S. 736.151). Expanded trust decanting provisions and broader principal invasion powers for authorized trustees.
- 2024 — Homestead protections expanded: Greater protections for surviving spouses against forced sale. Elective share trust guidelines clarified (F.S. 732.2025). Digital asset provisions expanded for probate and trust administration.
- July 2022 — Dynasty trusts extended to 1,000 years: Florida amended F.S. 689.225, extending the maximum trust duration from 360 years to 1,000 years for trusts created on or after July 1, 2022.
- July 2021 — Community Property Trust Act: F.S. 736.1501-736.1512 enacted, allowing married couples to opt into community property treatment for the double step-up in basis benefit.
- July 2021 — Florida Uniform Directed Trust Act (FUDTA): Allows bifurcation of trustee responsibilities between trust directors and directed trustees.
- Federal — OBBBA (July 2025): The federal estate tax exemption is now permanently set at $15 million per individual ($30 million per married couple) starting 2026, with inflation adjustments beginning 2027. The scheduled sunset to ~$7 million did not happen.
Last reviewed: February 2026
Last updated: February 2026. I review Florida’s estate planning rules quarterly and update this page whenever laws change. Bookmark it.
Go Deeper: Estate Planning Guides
| Guide | What You’ll Learn |
|---|---|
| Living Trusts: The Complete Guide | What a living trust is, how it works, and whether your family needs one — the foundation |
| How to Avoid Probate | Every method to keep your family out of court — trusts, TOD accounts, joint tenancy, and more |
| Having the Estate Planning Talk | How to start the hardest conversation your family will ever have — with scripts and strategies |
| Estate Tax Planning | Federal and state estate taxes, gift tax exclusions, and the step-up in basis explained |
| How to Fund Your Trust | The step everyone forgets — how to actually move your assets into your trust |
| The 5 Documents Every Family Needs | Trust, will, powers of attorney, healthcare directive — the complete package |
| Protecting Your Parents’ Legacy | Long-term care, Medicaid, blended families, and the threats nobody warns you about |
| Compare State Estate Planning Rules | See how your state compares on probate costs, estate taxes, and trust-friendly features |