Artificial intelligence seems to be everywhere.
People are using it to plan vacations, write emails, research purchases and, increasingly, ask questions about legal topics.
So, I decided to ask it a question of my own:
“What is the most asked estate planning question in the state of Florida?”
There isn’t an official statewide ranking, of course, but one question comes up over and over in Florida estate planning:
“Do I need a will or a trust?”
And right behind it is another question that may actually explain why so many people are asking the first one:
“How do I avoid probate in Florida?”
Those two questions are closely connected. But, as is often the case with estate planning, the answer isn’t as simple as choosing Door No. 1 or Door No. 2.
Will vs. Trust in Florida: What’s the Difference?
A will and a trust can both be important estate planning tools, but they do different things.
A will allows you to provide instructions about who should receive your probate assets after your death. It can also identify the person you want to serve as your personal representative, the Florida term for the person responsible for administering your probate estate.
A will, however, does not keep your estate out of probate. In fact, probate is the legal process that may be necessary to carry out the instructions contained in a will and transfer probate assets to beneficiaries. Assets owned solely in someone’s name without a mechanism for automatic transfer at death are examples of assets that may become probate assets. I describe a Will as a Letter to the Probate Court unless you take other steps.
A revocable living trust, on the other hand, can allow assets that have been properly transferred into the trust to be managed and eventually distributed according to the terms of that trust. One potential advantage is that properly funded trust assets generally do not have to go through the same court-supervised probate process.
But notice the phrase properly funded.
Creating a trust document and putting it in a drawer isn’t enough. Ownership of assets needs to be coordinated with the trust, and appropriate assets actually need to be transferred into it.
That is one reason the question shouldn’t necessarily be:
“Do I need a will or a trust?”
A better question may be:
“What combination of estate planning tools makes sense for my assets, my family and what I want to accomplish?”
Why Is Everyone So Concerned About Probate?
Probate has developed a reputation as something everyone should avoid at all costs.
I wouldn’t go quite that far.
Probate serves a purpose. It provides a legal process for transferring probate assets, addressing creditor claims and administering someone’s estate after death.
But probate also takes time… and money.
Even a relatively straightforward probate generally takes months rather than weeks. Florida has a creditor period that must be addressed, and more complicated estates, disputes, property sales or other issues can extend the process considerably.
That explains why “How do I avoid probate in Florida?” is such a common follow-up question.
The answer isn’t necessarily “get a trust.”
There are several ways assets may transfer outside probate depending upon the asset and your circumstances. Accounts with valid payable-on-death or transfer-on-death designations, certain jointly owned property and assets with properly named beneficiaries may pass outside probate.
That’s why good estate planning involves looking at more than a will. We also have to look at how your assets are titled and who is listed as a beneficiary.
What Happens If I Die Without a Will in Florida?
This is another question that comes up again and again.
When someone dies without a valid will, they are considered to have died intestate.
That does not mean Florida automatically takes everything you own.
Instead, Florida’s intestacy laws determine which relatives receive probate assets. Who receives what depends on factors including whether you are married, whether you have children and whether those children are also children of your surviving spouse.
The important point is this:
You are no longer the person making that decision. Florida law is.
Estate planning gives you the opportunity to make those decisions yourself.
Then Florida Throws in Homestead
This is where Florida estate planning can become especially interesting.
Florida has significant protections and restrictions surrounding homestead property, and those rules can affect what happens to a residence after someone’s death.
For example, Florida law restricts the ability to devise homestead property when an owner is survived by a spouse or minor child. Depending on the family circumstances, homestead may pass differently than someone assumed it would based solely on the language in a will.
This is one of the reasons I tell clients that estate planning isn’t simply about filling out a will.
We need to know what you own.
We need to know how you own it.
We need to know who your family members are.
And we need to understand what you actually want to happen.
Only then can we determine which tools make sense.
What About a Lady Bird Deed?
Another Florida-specific estate planning term you may encounter is a Lady Bird deed, formally called an enhanced life estate deed.
A Lady Bird deed can allow an owner to retain significant control over property during life while providing for the property to pass to designated beneficiaries after the owner’s death. It can be a useful tool for allowing real property to pass to intended beneficiaries outside the traditional probate process.
Does that mean everyone should have one?
No.
It means it is another tool worth discussing when real estate, particularly a Florida home, is an important part of your estate.
Estate planning is rarely about finding one magic document. It is about determining which combination of tools works together.
What About Planning for Incapacity?
Estate planning isn’t only about what happens after you die.
Just as important is deciding who can help you if you are alive but unable to handle things yourself.
A Durable Power of Attorney can give someone you trust authority to handle financial and legal matters for you. A Designation of Health Care Surrogate allows you to identify who should make health care decisions if you cannot make them yourself, while a Living Will addresses your wishes regarding end-of-life care.
For many people, these documents may become important long before a will or trust ever does.
A complete estate plan should address both possibilities: What happens when I die, and what happens if I am still here but need someone else to act for me?
Does Florida Have an Estate or Inheritance Tax?
Here’s another answer that sometimes surprises people.
Florida currently does not impose a Florida estate tax on people who died after December 31, 2004. Florida also does not impose a state inheritance tax.
Federal estate-tax considerations may still apply in some circumstances, so taxes should still be part of the conversation when appropriate.
What If I’m a Snowbird or Recently Moved to Florida?
This is an especially important question in Florida.
Maybe your will was drafted in New York.
Your trust was created in New Jersey.
Your power of attorney came from Michigan.
And now Florida is your permanent home, or at least one of your homes.
Moving to Florida does not necessarily mean that an otherwise valid estate plan from another state suddenly becomes invalid. But that doesn’t mean your old plan is necessarily the best plan for your current Florida circumstances.
Florida homestead rules, asset ownership, powers of attorney and other issues can create good reasons to have an out-of-state estate plan reviewed after establishing residency here.
Think of the move as a reason for an estate planning checkup—not necessarily a reason to throw everything away and start over.
Who Should I Choose as My Personal Representative?
People often focus heavily on who receives their property and spend far less time thinking about who will actually be responsible for administering the estate.
That decision deserves careful thought.
Your personal representative may be responsible for gathering and protecting assets, dealing with creditors, handling expenses and tax matters and ultimately distributing estate assets.
Florida also has qualification requirements for personal representatives. For example, some non-Florida residents who are not closely related to the person who died may not qualify to serve.
So don’t choose someone simply because they are the oldest child or the person who lives closest.
Choose someone who can handle the responsibility—and make sure your choice works under Florida law.
How Often Should I Update My Estate Plan?
There isn’t one date that works for everyone.
Instead, I recommend thinking about your estate plan whenever your life changes.
Marriage. Divorce. A new child or grandchild. The death of someone named in your documents. A major move. Buying or selling property. Starting a business. Significant changes in your finances. Changes in relationships.
Even if nothing dramatic has happened, periodically reviewing your documents, account ownership and beneficiary designations can uncover things you’ve forgotten.
Your estate plan should reflect your life today, not the life you were living when you signed the documents years ago.
So, Did AI Get the Answer Right?
In a way, yes.
“Do I need a will or a trust?” is exactly the kind of question people should be asking.
But I think there’s an even better one:
“What does my estate plan need to accomplish?”
Maybe you need a Will.
Maybe a revocable trust makes sense.
Maybe beneficiary designations and proper account titling solve much of the problem.
Maybe your Florida homestead needs special attention.
Maybe a Lady Bird deed belongs in the conversation.
Maybe the most important documents for you right now are the ones that allow someone you trust to help you during your lifetime.
And very often, the answer is some combination of these.
AI can give you a list of possibilities.
It can explain definitions.
It can even help you figure out which questions you should be asking.
But it doesn’t know your family, your property, your relationships or the things that keep you awake at night.
That’s where the real estate planning conversation begins.
Ask Heidi: If you’ve been wondering whether you need a will, a trust or both, or whether the estate plan you already have still fits your life, let’s start with your goals rather than the documents. Contact my office to schedule a consultation and talk about an estate plan designed around your life and your family.
