Most of what adult children need to know about Florida estate and incapacity planning is concentrated in a small number of documents and a handful of state-specific rules that diverge sharply from what they may have grown up with in another state.
The four documents to have in place this year
These are universally applicable in Florida regardless of wealth or family structure. Most cost between $400 and $1,500 through a Florida-licensed attorney; the trust adds another $1,500–$4,000.
1. Durable Power of Attorney (FS §709.2101 et seq.)
A Florida DPOA names a person (the agent or attorney-in-fact) to handle your parent’s financial affairs if they become unable to. Florida’s 2011 Power of Attorney Act made important changes: most notably, certain “superpowers” — the right to make gifts, to create or amend a trust, or to change beneficiary designations — must be specifically initialed in the document.1 A generic out-of-state POA may not carry these powers in Florida, which is why a Florida-specific document is important.
The DPOA should be durable(survives incapacity), in writing, signed by your parent in front of two witnesses and a notary. Banks and brokerages can be famously cautious about accepting out-of-state or generic POAs — the FS §709.2120(2) “reasonable reliance” provision pushes back on unreasonable refusal, but practitioners report that compliance is uneven. A bank-friendly POA from a Florida attorney is worth the extra cost.
2. Designation of Health Care Surrogate (FS §765.202)
Florida treats medical decision-making separately from financial decision-making. The Health Care Surrogate designation names a person to make medical decisions when your parent cannot communicate their wishes. Florida law (since 2015) allows the surrogate to act immediatelyupon designation if so specified — not just upon incapacity — which makes the document more flexible than its counterparts in many other states.2
3. Living Will (FS §765.302)
The Living Will expresses your parent’s wishes about end-of-life care — specifically, whether to withhold or withdraw life-prolonging procedures in defined terminal, end-stage, or persistent-vegetative-state conditions. It works alongside the Health Care Surrogate, not in place of it.
4. Revocable Living Trust (Florida Trust Code, FS §736)
A revocable trust is the workhorse of Florida estate planning. Your parent transfers assets into the trust during life, retains full control as trustee, and names a successor trustee to manage and distribute assets at death without probate. Florida is one of the friendlier states for trust administration: it adopted a modernized version of the Uniform Trust Code in 2007.
Florida’s homestead exemption: the strongest in the country
Article X §4 of the Florida Constitution provides that the homestead — a primary residence on up to one-half acre in a municipality or up to 160 acres outside — is exempt from forced sale to satisfy most creditor claims, regardless of the value of the home.3 This is the strongest creditor protection for a residence in the United States.
Practical implications for caregiving:
- For Medicaid planning, the homestead is generally an exempt asset for eligibility purposes, with an equity cap (~$713,000 in 2026) that is notwaived even in Florida. So the broad constitutional protection doesn’t fully translate to Medicaid context — see our Florida Medicaid guide.
- For estate planning, the homestead has devise restrictions. If your parent is married or has a minor child, the homestead cannot be devised freely — it must pass to the surviving spouse or be subject to a life estate / remainder pattern under FS §732.401. Out-of-state plans that simply “leave the house to the kids” often run afoul of this.
- For property tax, homestead status confers the Save Our Homes 3% annual assessed-value cap and a $50,000 assessment exemption. Losing homestead status (e.g., by renting the property) can produce a tax shock at the next assessment.
Probate in Florida: formal vs. summary administration
Florida probate is governed by Chapters 731–735 of the Florida Statutes. There are two main paths:
- Formal administration.The full probate process. Required for most estates with assets exceeding $75,000. Attorneys’ fees are set by statute at 3% of the first $1M of estate value, with declining percentages above — meaning a $500,000 estate produces a $15,000 attorney’s fee under the default schedule.4
- Summary administration.Available when total probate assets are under $75,000 OR the decedent died 2+ years ago. Faster (typically 4–8 weeks vs. 6–12 months for formal) and less expensive.
The combination of statutory fees and procedural complexity is why Florida is one of the most common states for revocable-trust planning: a properly funded trust avoids probate entirely and $15,000+ in fees on a typical estate.
The elective share rule that surprises out-of-state plans
Florida law gives a surviving spouse the right to take 30% of the “elective estate” regardless of what the will says.5The elective estate is broader than just probate assets — it includes the decedent’s trust assets, jointly-held property, retirement accounts, and certain transfers made in the year before death.
Why this matters: a Florida-domiciled parent in a second marriage who tries to leave most of their estate to children from a prior marriage will often have those plans partially undone by the surviving spouse’s elective share. The fix is a properly drafted prenuptial or postnuptial agreement, or the use of trusts that comply with the elective-share rules proactively. Generic out-of-state estate plans rarely anticipate Florida’s elective share.
No state estate tax, no state inheritance tax
Florida has neither a state estate tax nor a state inheritance tax. The Florida Constitution at Article VII §5 prohibits a state estate or inheritance tax beyond what federal credit would allow — and the federal pickup credit was eliminated in 2005, leaving Florida with no estate-tax revenue.
That leaves only the federal estate tax, which applies to estates exceeding the federal exemption (~$13.99M per individual in 2025; scheduled to sunset to roughly half that on Jan 1, 2026 unless Congress extends it).6For Florida residents below the federal threshold — the vast majority — estate planning is about probate avoidance, incapacity planning, and family coordination, not tax minimization.
What to do this quarter
- Locate (or create) your parent’s four documents: DPOA, Health Care Surrogate, Living Will, and (if appropriate) Revocable Living Trust.
- If documents exist but are more than five years old, have them reviewed — the 2011 Florida POA Act made earlier documents legally inadequate for many purposes.
- Confirm the homestead status of your parent’s primary residence at the county property appraiser.
- Get an estate-plan review if the will was drafted in another state.
- For our companion content on Medicaid planning, long-term-care funding, and the SIRS condo issue, see the Florida Medicaid guide and our SIRS update article.