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How to Create a Florida Estate Plan and When Probate Applies

How to Create a Florida Estate Plan and When Probate Applies

The Importance of Estate Planning

Why should you bother with estate planning? Well, for starters, it ensures the smooth distribution of your assets according to your wishes, keeping your loved ones safe from disputes & minimizing potential estate taxes. It also shields your assets from creditors. Above all, a thoughtfully designed estate plan provides mental peace & financial security for your family & beneficiaries.

Stokes McMillan Antúnez Martinez-Lejarza P.A. is a full-service Florida trusts and estates law firm providing services including, but not limited to, probate, estate planning, trust & estate administration, and trust and estate litigation. If you have any questions or wish to hire our firm, please contact us. 

Without an estate plan, your wealth might be dispersed as per Florida's intestacy laws, which might not mirror your desires. This discrepancy can lead to unexpected outcomes for your loved ones, potentially sparking expensive litigation, and the costs and delays that come with probate proceedings. Proper estate planning helps you sidestep these potential issues & guarantees that your estate is managed effectively.



  1. The Importance of the Probate Legal Process

    Probate is an essential legal process that establishes a formal means for handling the assets and debts of a deceased person. It authenticates a will, if one exists, providing a legally recognized means for distributing the deceased's assets to beneficiaries or heirs. Additionally, probate ensures that any outstanding debts or taxes are identified and paid, thus protecting both creditors' rights and the interests of the beneficiaries.

    The process also provides a forum for dispute resolution and mandates accountability through detailed record-keeping and reporting by the executor or administrator of the estate. Ultimately, probate provides an organized and definitive closure to the financial affairs of the deceased, preventing lingering uncertainty or conflict among survivors. However, despite its importance, the probate process is often time-consuming and costly, leading some to pursue estate planning strategies to avoid or streamline probate.

  2. Understanding the Intricacies of Estate Law
    Estate law covers a multitude of legal matters related to an individual's property & financial affairs, such as wills, trusts, powers of attorney, & advance directives. While primarily dictated by state law, certain federal laws like estate taxes also come into play. Given the specificity of statutes & regulations in Florida, teaming up with an adept estate planning attorney in Florida who is well-acquainted with these laws becomes vital.

  3. The Roadmap for Creating an Estate Plan

    Crafting an estate plan takes careful deliberation & a few crucial steps. Here's a succinct roadmap to guide you:

    • Step 1 - Evaluate Your Assets & Debts: Kick-off by making a detailed list of your assets, including real estate, personal belongings, bank accounts, investments, insurance policies, & retirement accounts. Likewise, note your debts, such as mortgages, loans, & credit card balances. This data will enable you & your Florida-based estate planning lawyer to pinpoint the best strategies for safeguarding & distributing your assets.

    • Step 2 - Define Your Beneficiaries: Make up your mind about who you wish to inherit your assets & in what proportions. It can be family, friends, or even charitable organizations. You should also decide whether to bequeath specific assets or divide everything amongst your beneficiaries.

    • Step 3 - Appoint Fiduciaries: Choose individuals or institutions to act as your personal representative (executor), trustee, & agent under a power of attorney. These fiduciaries will be tasked with administering your estate & managing your assets in the unfortunate event of your incapacitation. Choose trustworthy individuals capable of fulfilling these responsibilities.

    • Step 4 - Collaborate with an Estate Planning Lawyer in Florida: A seasoned estate planning attorney is your best bet to circumnavigate the labyrinth of laws & regulations governing estate planning in Florida. They can offer advice on the optimal strategies for realizing your estate planning goals & prepare the necessary documents to ensure your plan is legally binding & enforceable.

  4. Four Core Documents in Estate Planning



    1. Last Will & Testament:

      Your last will & testament is a legal declaration of how you wish your assets to be allocated after your passing. It also lets you name a personal representative to manage your estate & appoint a guardian for any underage children. To be considered valid in Florida, a will must fulfill certain requirements, such as being in writing, signed by you (the testator), & witnessed by two impartial witnesses.

    2. Trusts:

      A trust is a legal arrangement where one person (the trustee) manages assets for the benefit of another (the beneficiary). With a multitude of trusts to choose from, each serving different purposes & benefits, like revocable living trusts, irrevocable trusts, & special needs trusts, they can help you evade probate, lower estate taxes, & provide continuous asset management for minor or disabled beneficiaries.


    3. Durable Power of Attorney:
      This legal document lets you assign someone (the agent) to manage your financial affairs if you become incapacitated. This includes paying bills, managing investments, & making other financial decisions on your behalf. A durable power of attorney stays effective even if you become incapacitated, unlike a general power of attorney that expires upon your incapacity.


    4. Health Care Advance Directive:

      An advance directive outlines your preferences regarding medical treatment should you be unable to make decisions for yourself. It typically includes a living will, which specifies the types of life-sustaining treatment you would want or not want, & a health care surrogate designation, allowing you to appoint someone to make medical decisions for you.

  5. Four Valuable Tips for Effective Estate Planning


    1) Regularly Review and Update Your Estate Plan

    Laws & personal circumstances can change; hence, it's crucial to review & update your estate plan periodically. You might need to adjust your asset distribution, update beneficiary designations, or modify your estate planning documents to comply with new laws. We recommend revisiting your estate plan every few years or after significant life events, like marriage, divorce, or childbirth.

    2) Engage in Open Communication with Your Loved Ones

    Ensure your family members & other beneficiaries are in the loop about your estate planning intentions. It will help avoid future confusion & potential disputes after your death. Plus, your loved ones will better understand your wishes & be more prepared to fulfill them.

    3) Incorporate Incapacity Planning


    Apart from planning for your death, it's vital to consider the possibility of incapacitation due to illness or injury. By integrating durable powers of attorney & health care advance directives into your Florida estate plan, your financial & medical affairs will be managed as per your wishes if you ever become unable to make decisions for yourself.

    4) Seek Strong Advice


    Estate planning can be tricky, especially in Florida, where specific laws & regulations are in place. Collaborating with an experienced estate planning lawyer in Florida will help you navigate these intricacies & create a comprehensive, legally sound plan tailored to your needs & objectives. We highly advise picking a probate attorney with years of successful outcomes.

  6. Florida's Probate Law - What You Need to Know

    Probate is the judicial process through which a deceased person's assets are distributed to their heirs or beneficiaries. In Florida, this process is governed by the Florida Probate Code & involves the administration of the decedent's estate by a personal representative (executor) appointed by the court. Probate can be a protracted, expensive, & public process, which is why many opt to avoid it by using trusts & other estate planning techniques.


  7. The Responsibilities of a Florida Probate Attorney

    A probate attorney in Florida can guide personal representatives, beneficiaries, & other interested parties through the probate process. They can assist with filing the necessary court documents, notifying creditors & beneficiaries, collecting & valuing estate assets, settling debts & taxes, & distributing assets to the rightful heirs or beneficiaries. Probate attorneys can also represent clients in contested probate matters, such as will contests & disputes over the estate's administration.


  8. How to Choose an Estate Planning Attorney in Florida

    When picking the right estate planning lawyer in Florida, consider these:


    1. Experience: Opt for an attorney who is well-versed in estate planning & probate law, particularly in Florida. This ensures that they are familiar with the specific laws & regulations in the state.

    2. Area of Focus: A lawyer who primarily focuses on estate planning indicates a deep understanding of the subject. This can be a blessing in disguise, as it saves you from having to beat around the bush, trying to find a lawyer with the right experience.

Stokes McMillan Antúnez Martinez-Lejarza P.A. is a full-service Florida trusts and estates law firm providing services including, but not limited to, probate, estate planning, trust & estate administration, and trust and estate litigation. If you have any questions or wish to hire our firm, please contact us. 



This article was partly generated by the use of artificial intelligence or AI, and is provided as general information for educational purposes only. This article is not intended to provide specific legal advice, and should not be relied upon as a substitute for competent advice from a licensed attorney. To speak with one of our attorneys all you have to do is click hereIf you’re interested in more in-depth ruminations on this area of the law written 100% by a live human being, visit the Florida Probate & Trust Litigation Blog by going to the home page for firm partner Juan Antunez

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