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Florida Estate Planning Foundations: What Every Family Should Know in 2026

Quick Answer

A complete Florida estate plan generally includes a will (or a revocable trust plus a pour-over will), a durable power of attorney, a health care surrogate designation, and a living will — and 2026 brought helpful updates to Florida's probate shortcuts, though the core planning tools stayed the same.

By Arthur Simpson, Esq. · FL Bar #529265 Florida Estate Planning Attorney July 13, 2026

What Actually Changed in Florida Probate Law This Year

In my practice, clients often ask whether they need to redo their whole estate plan every time the legislature meets. Most years, the honest answer is no — and 2026 is a good example. Florida did not overhaul the fundamentals of wills, trusts, or powers of attorney. What it did do is make probate itself a little smoother for families who end up there.

Effective July 1, 2026, Florida raised several of the dollar thresholds that determine whether an estate can use simplified probate procedures instead of full administration. The threshold for summary administration — the faster, cheaper alternative to formal probate — increased from $75,000 to $150,000 in non-exempt assets. Florida also increased the amount of non-exempt personal property that can pass more easily, raised the amount of a federal tax refund that can go directly to a surviving spouse or child without probate, and increased the amount a bank can release to family members without court involvement.

The legislature also addressed a real headache I've seen firsthand: banks that drag their feet honoring valid Letters of Administration issued to a personal representative. Under the new law, personal representatives now have a clearer path to sue a bank that improperly refuses to cooperate, and the bank can be on the hook for attorney's fees if it loses.

None of this changes whether you need a will or a trust. But it does mean that for many modest and mid-sized Florida estates, probate — if it happens — may now be faster and less expensive than it was a year ago.

Will or Revocable Trust — Which Do Floridians Actually Need?

This is the question I get most often, and the honest answer is: it depends on your goals, not on which document sounds more sophisticated.

A last will and testament, executed according to Florida's formalities under F.S. § 732.502, directs how your assets are distributed and names a personal representative to handle your estate. A will alone does not avoid probate — in fact, a will is the document that gets probated. Wills are also the only place you can validly nominate a guardian for minor children; that nomination doesn't work in a trust.

A revocable living trust, governed by Florida's trust code in F.S. Chapter 736, is a separate legal arrangement that you create and control during your lifetime. Assets titled in the name of the trust generally bypass probate entirely when you pass away, because the trust — not you individually — technically owns them. Because Florida's statutory attorney's fees for probate are calculated as a percentage of the estate, larger estates often save meaningfully by avoiding probate through a funded trust.

⚠ The Funding Trap A trust that owns nothing protects nothing. I regularly review trusts that were properly signed years ago but where the house, bank accounts, or investment accounts were never retitled into the trust's name. Those assets go through probate anyway, defeating the whole purpose.

Most complete Florida plans use both: a revocable trust as the primary vehicle, paired with a simple pour-over will that catches anything left outside the trust and handles guardian nominations.

Powers of Attorney and Healthcare Surrogates: Planning for Incapacity

Estate planning isn't only about what happens after you die — it's equally about who can act for you if you can't act for yourself. Florida law gives you two distinct tools for this, governed by different statutes with different signing requirements.

A durable power of attorney, under F.S. Chapter 709, lets you name an agent to handle financial and legal matters — banking, real estate, tax filings, and more — if you become incapacitated. In Florida, a power of attorney must be signed in the presence of two witnesses and a notary public.

A health care surrogate designation, under F.S. § 765.202, names someone to make medical decisions on your behalf. It requires two witnesses but no notary, and one of those witnesses cannot be your spouse or a blood relative. Florida's current standard allows you to specify that your surrogate's authority to access your medical information or make decisions kicks in immediately — even while you still have capacity — rather than only after a doctor certifies incapacity.

A related document, the living will under F.S. § 765.301, states your wishes about end-of-life medical treatment, separate from naming who decides.

Practical Reality Check: Even a perfectly valid power of attorney can run into resistance at a bank if it's drafted in a way the institution isn't used to seeing. In my practice, I try to draft these documents with the practical experience of Florida banks and title companies in mind, not just legal sufficiency on paper.

Where Homestead and Digital Assets Still Trip Up Florida Plans

Florida's homestead protections are unique, powerful, and — I say this gently — frequently misunderstood by plans drafted by out-of-state attorneys or generic online services. Florida's homestead protections come from Article X, Section 4 and Article VII, Section 6 of the Florida Constitution, along with statutes like F.S. § 732.4015 governing how a homestead can be devised. These rules restrict who you can leave your homestead to if you're survived by a spouse or minor children, regardless of what your will or trust says. Homestead didn't change in the 2026 legislative session, but it remains one of the most common problem areas I find when reviewing plans that weren't built with Florida law specifically in mind.

Digital assets are another area where older plans often fall short. Florida law allows you to grant your agent or personal representative authority over online accounts, but only if your documents specifically say so. A power of attorney or will drafted a decade ago — before this was a common concern — is often silent on the issue, leaving family members without a clear legal path to access email, photos, or financial accounts held online.

The Federal Estate Tax Picture for 2026

For most Florida families, federal estate tax is simply not a concern — Florida has no state estate, inheritance, or gift tax, and the federal exemption amount is high enough that it only affects a small percentage of estates. For 2026, the federal estate and gift tax exemption increased and was made permanent by recent federal legislation, removing the sunset uncertainty that many advisors had been planning around for years. If you have significant assets or unique federal tax exposure, that's a conversation worth having directly with your attorney, since exact exemption figures and thresholds should always be confirmed at the time you're actually planning.

Frequently Asked Questions

Do I need both a will and a trust in Florida?
Many complete Florida plans include both: a revocable trust to hold major assets and avoid probate, plus a simple pour-over will to catch anything left outside the trust and to name a guardian for minor children, which can only be done in a will.
Did the 2026 changes to Florida probate law mean I need to update my estate plan?
Not necessarily — the 2026 changes mainly raised dollar thresholds for simplified probate procedures rather than changing how wills, trusts, or powers of attorney work, but it's still a good occasion for a general review.
What's the difference between a power of attorney and a health care surrogate in Florida?
A durable power of attorney covers financial and legal decisions and requires two witnesses plus a notary, while a health care surrogate designation covers medical decisions and requires two witnesses but no notary.
Does a revocable trust avoid probate automatically?
Only for assets that are actually retitled into the trust's name; a trust document alone, without funding, does not avoid probate for assets left in your individual name.
Does Florida have a state estate tax?
No — Florida does not impose a state estate, inheritance, or gift tax, though your estate could still be subject to federal estate tax if it's large enough to exceed the federal exemption.
Can I leave my Florida homestead to anyone I want in my will?
Not always — Florida's constitutional and statutory homestead rules restrict how you can devise your primary residence if you're survived by a spouse or minor children, so this should be reviewed with an attorney familiar with Florida homestead law.

The Truestead Takeaway

The tools of Florida estate planning — wills, revocable trusts, durable powers of attorney, health care surrogates, and living wills — haven't changed this year, but the probate process around them got a little more efficient, and federal tax numbers shifted. If your documents are more than a few years old, were drafted outside Florida, or you're not sure whether your trust actually owns anything, that's worth a conversation with a Florida estate planning attorney rather than a guess. Reviewing your plan doesn't need to be urgent or stressful — it just needs to happen periodically, with someone who knows Florida law specifically.

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This article is for general informational purposes only and does not constitute legal advice, nor does reading it create an attorney-client relationship. Florida estate, elder, probate, and real estate law are fact-specific and change over time. Consult a licensed Florida attorney about your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida. Attorney advertising.