Florida probate is not the horror story people whisper about at neighborhood barbecues, but it is slow, public, and sometimes expensive. For many homeowners, probate is also avoidable with good estate planning. The question is not whether probate is always bad, but whether it makes sense to put your loved ones through a court process when a handful of straightforward steps could keep your home and other assets moving smoothly to the right hands.

After two decades of working with families across Hillsborough County and beyond, I can say this with confidence: the best plan fits the family and the property, not a generic checklist. If you own a home in Florida, understanding how title, beneficiary designations, and trusts interact under Florida law is the starting line. With the right structure, your estate can sidestep probate where it matters most, without losing flexibility or control.

What probate actually does in Florida

Probate is the court process that transfers assets owned in your name alone at death to the people entitled to receive them. The court validates your will if you have one, identifies heirs if you do not, appoints a personal representative, ensures creditors get notice, and oversees distributions. In Florida, there are two primary versions: summary administration for smaller estates or older deaths, and formal administration for larger or more complex estates. Formal administration regularly runs six to twelve months, sometimes longer if there is real estate to sell, creditor disputes, or out-of-state heirs. Summary administration can be faster, but it is not available for every estate.

Costs vary. Attorney’s fees are typically a percentage of the probate estate under Florida’s fee guidelines, and while these guidelines are not mandatory, they influence the market reality. Add filing fees, publication costs, and recording fees. The financial burden is one thing, the time and delay are another, and the public nature of filings is what many families find most uncomfortable.

Probate is not punishment. It is the default when someone dies owning “probate assets.” That is where asset structuring comes into play.

What counts as a probate asset and what does not

A house titled solely in your individual name with no beneficiary designation is a probate asset. So is a bank account in a single name without pay-on-death instructions. On the other hand, assets with a built-in transfer mechanism usually avoid probate. That includes real estate held with survivorship rights, life insurance with named beneficiaries, retirement accounts with properly completed designations, and property held in a revocable living trust.

Florida law draws clean lines. If your name appears on title and no alternate transfer instructions exist, the court must be involved. If the asset is already set up to transfer by operation of law or by contract upon death, probate typically steps aside. The hinge point is ownership and designation, not simply having a will. A will guides probate, it does not bypass it.

The homeowner’s toolkit for avoiding probate

Homeowners in Florida have several proven options to pass their home without probate while preserving tax advantages and control. Each tool solves a different problem, so the right mix depends on family, creditors, timing, and tax considerations.

Tenancy strategies: TBE, joint tenancy, and why details matter

Married couples in Florida can hold property as tenants by the entirety, commonly abbreviated TBE. This is a special form of ownership recognized under Florida law that treats the spouses as a single legal unit. When one spouse dies, full ownership passes to the survivor automatically. No probate, no deed, no fuss. TBE also offers creditor protection against a spouse’s separate debts, which is a material benefit in practice. Most title companies will default to TBE for married buyers unless instructed otherwise, but it is wise to check your deed. If the deed lacks proper language, the survivorship feature may not apply.

Joint tenancy with right of survivorship functions similarly for unmarried co-owners. The survivor takes full title outside probate. The drawbacks come with control and timing. A joint owner can encumber or complicate the title. If the joint owner dies first, the strategy fails for the original owner’s estate. Gifting interests to children to “avoid probate” can produce capital gains surprises and property tax headaches. I have seen adult children sell a parent’s home out from under them, not out of malice, but due to divorce, bankruptcy, or simple need. Adding a child to the deed is rarely the best first move.

Enhanced life estate deeds, known as Lady Bird deeds

Florida recognizes the enhanced life estate deed, often called a Lady Bird deed. This deed lets you keep full control during your lifetime, including the ability to mortgage, sell, or change beneficiaries without the remainder beneficiaries’ consent. On death, the property passes automatically to the named remainder beneficiaries, avoiding probate.

The Lady Bird deed is a workhorse. It preserves your homestead tax assessment and creditor protections, and it usually does not count as a transfer for Medicaid’s five-year lookback because you retain control. It is also simple and cost-effective compared to a trust. The trade-offs are narrow: title companies in other states sometimes balk when selling later, and coordination with mortgages and homeowners associations requires careful drafting. But for many single-property homeowners, especially in estate planning Florida circles, a Lady Bird deed is elegant and durable.

Transfer-on-death deeds and why Florida is different

Many states now allow transfer-on-death deeds that name a beneficiary for real estate. Florida does not. The closest analogue is the Lady Bird deed. I occasionally meet clients who moved from the Midwest where TOD deeds are common and are surprised to learn Florida takes a different route. The effect can be similar, but the mechanics and language are distinct.

Revocable living trusts for comprehensive control

A revocable living trust takes the long view. You transfer title to the trust during life, retain control as trustee, and set detailed rules for what happens at death or if you become incapacitated. Assets titled in the trust avoid probate. More importantly, the trust centralizes management. If you become ill, your successor trustee steps in seamlessly. For blended families, special needs, or rental portfolios, a trust structure is usually the most predictable solution.

The trap is funding. A trust not funded is a trust that fails to avoid probate. Deeding the home into the trust correctly, aligning homeowner’s insurance, notifying your lender if required by the mortgage, and retitling related accounts are the unglamorous steps that make the plan real. Done right, you keep your homestead exemption and Save Our Homes cap, and the trust need not complicate your property taxes. Reputable Florida practitioners, including firms like Shaughnessy Law Estate Planning in estate planning Brandon, will provide a checklist and coordinate deeds while confirming homestead status remains intact.

Beneficiary designations and pay-on-death accounts

While this article focuses on real estate, your home rarely sits alone. Bank accounts, brokerage accounts, and even vehicles can often carry beneficiary or transfer-on-death instructions. Aligning these with your trust or your Lady Bird deed can avoid partial probate. One orphan account with no beneficiary can force the whole estate into court. I once administered an otherwise neat estate where a single $18,000 account with no pay-on-death designation triggered formal probate. A fifteen-minute visit to the bank years earlier would have saved six months.

The homestead wrinkle: Florida’s unique protections

Florida homestead is a force of nature in estate law. It provides creditor protection, caps assessment increases, and creates restrictions on devise when a surviving spouse or minor child exists. If you die owning homestead in your individual name with a spouse or minor child, your will may not control who receives it. Instead, the Constitution and statutes dictate that the spouse gets a life estate or can elect a half interest, with the remainder to the children. This is where many well-meaning wills crash into Florida public policy.

Proper structuring can harmonize homestead protections with your intent. Titling homestead as TBE solves the devise restriction because the property shifts to the surviving spouse by survivorship, not by will. A Lady Bird deed can name the spouse first, then adult children, while preserving your control. A revocable trust can hold homestead with carefully tailored language that preserves the homestead’s constitutional benefits. The drafting choices matter: mishandling homestead exemptions or Save Our Homes caps can cost a family thousands annually.

When avoiding probate is not the right objective

Avoiding probate is not an absolute good. Sometimes court oversight helps. Examples appear in families with deep conflict, likely creditor contests, or beneficiaries with addiction or capacity issues. A formal guardian of the property may be necessary for minors when real estate passes outside probate without trust planning. Joint ownership can entangle everyone in a forced sale if relationships sour.

There are also tax considerations. While Florida has no state estate tax, federal estate and gift taxes could affect very large estates. More commonly, capital gains and step-up in basis drive decisions. Florida does not have an inheritance tax, and on death, assets generally receive a new cost basis equal to fair market value. If you gift part of your house to a child during life, they take your old basis, which may trigger large capital gains if they sell. Keeping assets in your name or in a grantor revocable trust until death typically preserves the step-up. This is another reason Lady Bird deeds and revocable trusts are favored over lifetime gifts in Florida estate planning.

Case studies from daily practice

A Brandon couple in their 70s owned a homestead and two small brokerage accounts. Their goal was simplicity. We created a Lady Bird deed naming the surviving spouse first, then their adult daughter. We added transfer-on-death designations to their accounts to the survivor and then the daughter. We left their small car to pass by title transfer. When the husband died three years later, the wife recorded a death certificate and continued uninterrupted. When she later passed, the daughter presented death certificates to the county recorder and the banks. No probate, no extra tax filings, no six-month delay.

A different scenario involved a single homeowner with two adult children, one responsible and one not. A Lady Bird deed alone would have delivered the house outright to both, which risked a forced sale. Instead, we used a revocable living trust with a spendthrift provision. On her death, the home stayed in trust, the responsible child became trustee, and the less stable child received a limited monthly distribution funded by rent. The trust permitted a sale only with both a trustee vote and the advice of a CPA to confirm tax impact. The property avoided probate, but the structure added guardrails that a deed could not.

A third case shows the danger of partial planning. A widower added his son to his checking account and put pay-on-death on his savings, but left the condo titled solely to himself. He passed suddenly. That single deed forced a formal probate because of disputed condo assessments and delayed the sale for nine months. An enhanced life estate deed drafted years earlier would have avoided the bottleneck.

Creditors, Medicaid, and the house

Florida’s homestead, while the owner is living, is generally protected from most creditors. After death, homestead that passes to heirs or a surviving spouse is exempt from forced sale to pay the decedent’s unsecured creditors. That is a strong policy. However, if the property is not homestead, or if it passes to non-heirs, creditor rules change. Further, association liens, property taxes, and mortgages remain payable regardless of homestead status.

On Medicaid, timing and control define outcomes. Florida does not have an estate recovery claim against a homestead that passes to heirs in many cases, but the rules are technical and can change. An enhanced life estate deed typically does not trigger a Medicaid penalty because you retain full control. Traditional life estate deeds, which restrict your ability to sell without the remainder beneficiaries, can create penalties. Revocable trusts are ignored for Medicaid eligibility because the assets are still considered available, but they remain useful for probate avoidance and incapacity planning. Anyone balancing long-term care planning with property goals should coordinate with counsel who works in both estate planning and elder law so the pieces do not conflict.

Coordinating real estate with the rest of the estate

The most common planning error is focusing on the house and forgetting the bank accounts, the vehicle titles, and beneficiary designations. Everything must point in the same direction. If your trust is the core, your deed should move the home into the trust or use a Lady Bird deed that ultimately pours to the trust. Your retirement accounts may list the trust as a backup beneficiary, but sometimes better tax outcomes come from naming individuals directly. Your homeowners insurance should list the trust if the property is in the trust. If you refinance, you may need to move the deed out and back in, or obtain lender consent. These are not theoretical details; they are the friction points that derail clean transfers.

The same coordination applies to homestead and portability of the Save Our Homes cap. If you move, you want to carry your cap when possible. Titling the new property properly from day one avoids later reapplications and taxable surprises. A quick review with a local practitioner in estate planning Brandon FL can save you headaches at closing.

Costs, effort, and the value of doing it once

Setting up a Lady Bird deed in Florida is generally inexpensive compared to the time and fees of probate. Trust-based plans cost more up front but pay dividends in flexibility and broad coverage. Think in terms of proportion. If your home represents most of your wealth, spending a fraction of one percent of the home’s value to lock in an orderly transfer makes sense. If you have multiple properties or rental units, avoid probate not just for cost savings, but for operational continuity. A successor trustee can keep rents collected and repairs underway, while a personal representative in probate may need court approvals.

Maintenance is modest. Review designations after marriages, divorces, births, and deaths. Check deeds after any refinance or significant home improvement that involved a permit and a fresh insurance binder. Glance at your homeowner’s declaration page once a year to verify the named insured matches title. If you change your trust, make sure the property descriptions still match.

Practical checklist for Florida homeowners

Verify how your deed is titled. Confirm TBE for married couples, or consider an enhanced life estate deed or trust if you are single or widowed. Review beneficiary designations on all non-real estate assets and align them with your overall plan. Decide whether a revocable living trust is warranted for your family situation, and if so, fund it fully, including retitling the home. Preserve homestead benefits. Ensure your plan respects devise restrictions, Save Our Homes caps, and creditor protections. Revisit the plan after major life events, refinances, or relocations within Florida.

Situations that call for professional judgment

Do not rely on boilerplate when the facts are complex. If you have a blended family, co-own property with someone who is not your spouse, hold out-of-state real estate, run a business from your home, or anticipate family conflict, treat your plan like a project with moving parts. Estate law is full of exceptions that punish assumptions. For example, a homestead in a revocable trust remains eligible for the homestead tax exemption if the trust has the right language, but a single missing clause can lead to a costly dispute with the property appraiser. Similarly, a joint tenancy deed prepared in another state might not import Florida survivorship correctly, especially when the original deed used unfamiliar terms.

Local knowledge matters. Practitioners seasoned in estate planning Florida issues keep an eye on county-level recording habits, homeowners association quirks, and title underwriter preferences. Firms such as Shaughnessy Law Estate Planning in Brandon handle both the legal form and the practical steps, from coordinating with lenders to confirming policy endorsements. That integration is what turns a plan from a stack of papers into a working system.

The bottom line: should you avoid probate?

For most Florida homeowners, yes, avoiding probate for the home is both practical and prudent. The house is where families feel delay and disruption most acutely. A Lady Bird deed is often the simplest path for a primary residence. A revocable living trust is usually the stronger frame when you have multiple properties, sensitive family dynamics, or a desire for detailed control over distributions and incapacity planning. Tenancy by the entirety remains a natural fit for married couples but should be paired with a backup plan for the survivor.

Avoiding probate is not about gaming the system. It is about matching Florida’s legal tools to your real life so that the roof over your family’s head does not become a case number in a public docket. If you spend a few hours now to set title and designations correctly, you will likely save your family months later. And if your situation involves the common Florida mix of homestead protections, Save Our Homes caps, and retirement accounts, work with a practitioner who lives in this terrain daily. Good estate planning is quiet planning. When it works, nobody notices the law at all, and that is exactly the point.

Shaughnessy Law
Address: 618 E Bloomingdale Ave, Brandon, FL 33511
Phone: +1 (813) 445-8439

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Estate Planning in Florida: Your Questions Answered

Do I really need a will if I don't have a lot of assets?

Yes, you absolutely need a will even with modest assets. A will isn't just about dividing up money—it's about making sure your wishes are followed. Without one, Florida's intestacy laws decide who gets what, and that might not align with what you want.

Plus, if you have minor children, a will lets you name their guardian. Without it, a judge makes that call. Even if you're not wealthy, having a will saves your family unnecessary headaches during an already difficult time.

What's the difference between a will and a trust in Florida?

A will goes through probate court after you pass away, while a trust lets your assets pass directly to beneficiaries without court involvement. The will becomes public record and probate can take months, but trusts keep things private and often move faster.

In Florida, probate can be expensive and time-consuming, especially if you own property here. Trusts also give you more control—you can set conditions on when and how beneficiaries receive assets. The downside? Trusts cost more upfront to set up, but they often save money and hassle later.

How does Florida's homestead exemption affect my estate plan?

Florida's homestead laws provide special protections and restrictions that directly impact who can inherit your home. Your primary residence gets special protection from creditors, and there are restrictions on who you can leave it to if you're married.

You can't just will your homestead to anyone you want—your spouse has rights to it, even if your will says otherwise. This trips people up all the time. If you own a home in Florida, you need to understand these rules before finalizing any estate plan.

Can I avoid probate in Florida?

Yes, you can minimize or avoid probate through several strategies. Setting up a revocable living trust, using beneficiary designations on accounts, owning property as joint tenants with rights of survivorship, or using transfer-on-death deeds for real estate all work.

Many people use a combination of these. That said, probate isn't always the enemy—Florida has a simplified process for smaller estates under $75,000. The key is understanding what makes sense for your specific situation rather than avoiding probate just because someone told you to.

What happens if I die without an estate plan in Florida?

Your estate goes through intestate succession, where Florida law determines who inherits based on a predetermined formula. Generally, everything goes to your spouse, or if you don't have one, it's divided among your children.

No spouse or kids? Then parents, siblings, and other relatives. It sounds straightforward, but it gets messy fast—especially with blended families, estranged relatives, or if you wanted to leave something to a friend or charity. The process takes longer, costs more, and might not reflect your actual wishes at all.

Do I need to update my estate plan if I move to Florida from another state?

Yes, you should have a Florida attorney review and likely update your estate plan when you relocate here. Estate planning laws vary significantly by state, and what worked in New York or California might not hold up here.

Florida has unique rules about homestead property, different probate procedures, and its own requirements for valid wills. Your out-of-state documents might technically be valid, but they could create problems or miss opportunities for Florida-specific protections. It's usually not a complete overhaul, but adjustments are almost always needed.

How do power of attorney documents work in Florida?

A power of attorney authorizes someone to make decisions on your behalf if you become incapacitated. In Florida, you need two types: a durable power of attorney for financial matters and a healthcare surrogate (similar to a healthcare power of attorney elsewhere).

The financial POA lets your agent handle banking, pay bills, manage property—basically anything money-related. The healthcare surrogate makes medical decisions. These documents are crucial because without them, your family might need to go to court for guardianship, which is expensive and invasive.

What's a living will, and is it different from a regular will?

A living will is completely different from a regular will—it outlines your end-of-life medical preferences while you're still alive but incapacitated. It tells doctors what life-prolonging measures you want if you're terminally ill or in a permanent vegetative state.

A regular will, on the other hand, distributes your property after you die. You need both. Florida has specific requirements for living wills—they need to be witnessed properly, and you should make sure your doctors and family have copies.

How much does estate planning typically cost in Florida?

Estate planning in Florida typically costs anywhere from $300 for a simple will to $5,000+ for complex plans. A simple will might run $300-$800, while a complete estate plan with wills, trusts, powers of attorney, and healthcare directives usually costs $1,500-$3,500 for most people.

Complex situations with business interests, multiple properties, or tax planning can run $5,000 or more. It may seem like a lot upfront, but compare that to probate costs—which can easily hit 3-5% of your estate's value. Good planning pays for itself.

Can I create my own estate plan using online forms?

You can create your own estate plan using online forms, but it's risky unless your situation is very simple. Online forms work okay for single people with straightforward assets and clear beneficiaries.

However, Florida has specific rules about witness requirements, homestead restrictions, and other legal nuances that generic forms might miss. One mistake can invalidate your documents or create problems your family has to sort out later. For most people, the few hundred dollars saved isn't worth the risk. At minimum, have an attorney review any DIY documents before you finalize them.

Shaughnessy Law
Address: 618 E Bloomingdale Ave, Brandon, FL 33511
Phone: +1 (813) 445-8439

Estate Planning in Brandon, Florida

Shaughnessy Law provides estate planning services in Brandon, Florida.

The legal team at Shaughnessy Law helps families create wills and trusts tailored to Florida law.

Clients in Brandon rely on Shaughnessy Law for guidance on probate avoidance and asset protection.

Shaughnessy Law assists homeowners in understanding Florida’s homestead exemption during estate planning.

The firm’s attorneys offer personalized estate planning consultations to Brandon residents.

Shaughnessy Law helps clients prepare durable powers of attorney and living wills in Florida.

Local families choose Shaughnessy Law in Brandon, FL to secure their legacy through careful estate planning.