Author: mP@

What is Probate Litigation?

Posted on | by mP@
Probate litigation attorney reviewing estate documents in Florida

Probate litigation is the legal process used to resolve disputes involving a deceased person’s estate, will, trust, beneficiaries, or the administration and distribution of estate assets. In Florida, probate litigation can involve will contests, trust disputes, beneficiary disputes. And it can also cover challenges involving undue influence or improper execution. Even disagreements concerning a personal representative, and other contested estate matters.

Although people often use the term probate litigation to mean a will contest, a will contest is only one type of probate dispute. Florida probate proceedings can involve many different questions about who is entitled to inherit, how an estate should be administered, whether a particular document is legally valid, and whether someone responsible for managing an estate has properly performed their duties.

For families dealing with an estate dispute in Coral Springs, Fort Lauderdale, Broward County, or elsewhere in South Florida, understanding what probate litigation involves can help clarify when a disagreement requires formal legal action.

What Does Probate Litigation Involve?

Probate litigation can arise whenever interested parties disagree about a legal issue affecting an estate or the rights of people connected to it.

Under Florida Probate Rule 5.025, certain matters are specifically treated as adversary proceedings. These include proceedings to contest the validity of a will, revoke the probate of a will, determine beneficiaries, construe or modify a will, probate a lost or later discovered will, remove or surcharge a personal representative, and determine certain rights relating to an estate. These proceedings are generally handled in a manner similar to civil litigation, with the Florida Rules of Civil Procedure applying as provided by the probate rules.

Common examples of probate litigation include:

Will Contests

A beneficiary or other interested person may dispute whether a will is legally valid.

  • Florida law recognizes specific requirements concerning the execution of a will. A challenge can also involve allegations that the will was procured through fraud, duress, mistake, or undue influence, among other potential grounds.
  • A will contest is not simply a disagreement with how someone chose to distribute their property. The person challenging the will generally must establish a legally recognized basis for opposing probate or seeking revocation.
  • Florida law also establishes specific rules concerning the burdens of proof in will contests. The proponent of a will initially has the burden of establishing prima facie formal execution and attestation. The contestant then has the burden of establishing the grounds on which probate is opposed or revocation is sought.

Arguments Over Undue Influence

  • Family members sometimes question whether an elderly, vulnerable, or dependent person was pressured into changing a will or other estate planning document.
  • Undue influence can become an important issue in probate litigation, particularly where a person who exercised substantial influence over the decedent also benefited from a change in the estate plan.
  • Florida law contains specific rules concerning the presumption of undue influence and the allocation of the burden of proof in certain circumstances.

Disputes Over Beneficiaries

  • Sometimes the central question is not whether a will exists, but who is legally entitled to receive property from an estate.
  • Florida probate proceedings can address disputes concerning the determination of beneficiaries. Such disputes may arise from conflicting estate planning documents, questions about a beneficiary’s status, or disagreements concerning the interpretation or application of an estate plan.

Conflicts Involving a Personal Representative

  • A personal representative is responsible for administering a Florida estate according to the law and the requirements of the probate proceeding.
  • Litigation may arise when interested persons allege that a personal representative has failed to properly perform those responsibilities. Florida Probate Rule 5.025 specifically identifies proceedings to remove or surcharge a personal representative as adversary proceedings.

Disputes Over the Meaning of a Will

Not every probate dispute involves an allegation that a will is fraudulent or invalid.

  • Sometimes the document itself is valid, but the people involved disagree about what a particular provision means or how property should be distributed. Florida probate rules specifically recognize proceedings to construe, reform, or modify a will as adversary proceedings.

Later Discovered or Lost Wills

  • Questions can also arise when a will is discovered after another will has already been submitted to probate, or when a person seeks to probate a will that has been lost or destroyed.
  • Florida Probate Rule 5.025 specifically identifies proceedings involving lost, destroyed, or later discovered wills as adversary proceedings.

Is Trust Litigation the Same as a Will Contest?

No. Trust litigation is related to probate litigation but involves different legal documents and procedures.

Florida’s Trust Code allows judicial proceedings concerning trusts to address their validity, administration, or distribution. These proceedings can involve determining whether a trust is valid, appointing or removing a trustee, reviewing trustee accounts or fees, determining beneficiaries, interpreting trust provisions, and resolving questions involving the rights and duties of trustees and beneficiaries.

A trust contest can also involve a challenge to the validity or revocation of all or part of a trust. Florida law places the burden of establishing the grounds for invalidity on the person contesting the trust. Special timing rules apply to contests involving revocable trusts.

For that reason, a dispute involving a trust should not automatically be treated as a will contest. The appropriate legal analysis depends on the document involved, the circumstances surrounding it, and the specific issue being disputed.

Can You Contest a Will Before Someone Dies in Florida?

Generally, no.

Florida Statute §732.518 provides that an action contesting the validity of all or part of a will, or contesting its revocation, cannot be commenced before the testator’s death.

This distinction is important. Someone may have serious concerns about how another person is being influenced or about changes being made to an estate plan, but a formal action challenging the validity of a will generally cannot be brought until after the testator has died.

Trust disputes can involve different timing rules, particularly when the trust is revocable.

Florida probate attorney discussing an estate dispute with family members

Does Probate Litigation Always Mean Someone Is Trying to Invalidate a Will?

No.

A probate case can become contested even when nobody is arguing that the entire will should be invalidated.

For example, litigation may concern:

  • Who the beneficiaries are
  • How a provision of a will should be interpreted
  • Whether a later will should be admitted to probate
  • Whether a personal representative should be removed
  • Whether a personal representative should be held financially responsible for misconduct
  • Whether a particular asset belongs in the estate
  • How property should be distributed
  • Whether someone has been improperly excluded from an inheritance
  • Whether a trust is valid or how its provisions should be interpreted

This is why probate litigation is better understood as a broad category of estate related disputes rather than simply another name for a will contest.

What Happens During Probate Litigation?

The procedure depends on the nature of the dispute, but contested probate matters can involve formal pleadings, service of legal documents, discovery, evidence, hearings, depositions, expert testimony, settlement negotiations, and ultimately a ruling by the court.

Florida Probate Rule 5.025 provides that after formal notice in an adversary proceeding, the matter is conducted as nearly as practicable like a civil action, with the Florida Rules of Civil Procedure governing as provided by the rule.

The exact process depends on the dispute. A straightforward disagreement about the interpretation of an estate document may involve very different issues from a contested will proceeding involving allegations of undue influence or fraud.

When Should You Speak With a Probate Litigation Attorney?

It can be important to obtain legal advice before taking action when you believe an estate is being administered improperly or that an estate planning document may not reflect the decedent’s valid wishes.

Situations that may warrant legal review include:

  • You believe a will was improperly executed.
  • A new will or codicil appeared shortly before someone’s death and you have concerns about the circumstances surrounding it.
  • You believe someone exercised undue influence over the person who created the estate plan.
  • You believe a beneficiary has been improperly excluded.
  • You believe a personal representative is mishandling estate assets.
  • Family members disagree about who is entitled to inherit.
  • A dispute has developed over the meaning of a will or trust.
  • A trust’s validity or administration is being challenged.
  • You have received formal legal notice concerning a contested probate proceeding.

Probate disputes can involve strict procedural requirements and deadlines. The appropriate legal strategy depends heavily on the documents involved, the stage of the probate proceeding, and the specific facts of the dispute.

Probate Litigation in Coral Springs, Fort Lauderdale, and South Florida

MyPersonalAttorneys assists clients dealing with estate and probate matters in Coral Springs, Fort Lauderdale, Broward County, and throughout South Florida.

Probate litigation can be particularly difficult. Especially when disagreements arise between family members who are already dealing with the loss of someone close to them. A dispute may involve substantial financial interests. Yes – but it can also involve questions about the decedent’s wishes, family relationships, and the proper administration of an estate.

Understanding the nature of the dispute is the first step. Whether the issue involves a contested will, beneficiary rights, a trust, a personal representative, or another probate matter, an attorney can review the relevant documents and explain the legal issues involved.

Frequently Asked Questions About Probate Litigation

What is probate litigation?

  • Probate litigation is the legal process for resolving contested issues involving an estate, will, beneficiaries, personal representative, or related probate matter. It can include will contests, beneficiary disputes, challenges involving estate administration, and other adversary proceedings.

What is the difference between probate and probate litigation?

  • Probate is the legal process through which an estate is administered after someone dies. Probate litigation occurs when a legal dispute arises within or in connection with that process and requires formal resolution.

Is a will contest the same as probate litigation?

  • No. A will contest is one type of probate litigation. Probate litigation can also involve beneficiary disputes. Things like personal representative disputes, interpretation of a will, later discovered wills, and other contested estate matters.

Could you challenge a will in Florida?

  • Yes, but a will cannot be challenged simply because a beneficiary disagrees with the distribution. A challenge generally requires a legally recognized basis for opposing probate or seeking revocation. Florida law establishes specific rules governing will contests and their burdens of proof.

Can you contest a will before someone dies?

  • Generally, no. Florida Statute §732.518 provides that any contest of the validity of a will can’t commence before the testator’s death.

Can a trust be challenged in Florida?

  • Yes. Florida law permits judicial proceedings concerning the validity, administration, and distribution of trusts. This includes proceedings involving trustees, beneficiaries, and the interpretation of trust provisions.

Do I need a probate litigation attorney?

  • If an estate dispute involves a contested will, beneficiary rights, or another matter requiring formal litigation, you better be careful. Obtaining advice from an attorney experienced in probate disputes can help you understand your legal rights and available options.

Discuss Your Probate Dispute With MyPersonalAttorneys

If you are involved in a contested estate matter in Coral Springs, Fort Lauderdale, or South Florida, MyPersonalAttorneys can review your situation and explain the legal issues that may apply.

Call 954-334-1520 to discuss your probate or estate dispute.

What Is a Lady Bird Deed?

Posted on | by mP@
Florida home and legal deed representing Lady Bird Deed estate planning

A Lady Bird Deed in Florida is an enhanced life estate deed that allows a property owner to name someone who will receive the property after the owner’s death while retaining broad control over the property during life.

Unlike a traditional life estate, a properly drafted Lady Bird Deed can allow the owner to sell, mortgage, or otherwise convey the property without the future beneficiary’s permission. It can also allow the property to pass outside the ordinary probate process.

Because Florida does not have a statutory form called a “Lady Bird Deed,” the language used in the deed is especially important.

How Does It Work?

The property owner transfers the property through a deed that reserves an enhanced life estate and identifies one or more people who are intended to receive the property after the owner’s death.

During the owner’s lifetime, the owner generally retains the right to:

  • Live in and use the property
  • Sell the property
  • Mortgage the property
  • Convey the property to someone else
  • Change or defeat the beneficiary’s future interest, depending on the deed’s language

If the owner dies while the deed remains effective, the property can pass to the designated beneficiary without becoming part of the owner’s probate estate.

The exact result depends on the language of the deed and the circumstances surrounding the property.

Lady Bird Deed vs. a Regular Life Estate

The most important difference is the amount of control retained by the original owner.

With a traditional life estate, the owner keeps the right to possess and use the property for life but gives another person a present remainder interest. Selling or mortgaging the entire property can therefore require the remainderman’s participation.

An enhanced life estate, by contrast, can reserve the owner’s power to sell, mortgage, or convey the property without the beneficiary joining the transaction.

Florida courts have recognized this distinction. In Hirschenson v. Compu-Link Corp. of MI, the Third District Court of Appeal discussed an enhanced life estate as allowing the holder to sell, convey, mortgage, and otherwise manage the property without the remainderman’s joinder.

Does It Avoid Probate?

One reason Florida property owners consider this type of deed is probate avoidance.

If the deed is properly executed and remains effective when the owner dies, the designated beneficiary can receive the property without the real estate passing through the owner’s ordinary probate estate.

That does not mean every Lady Bird Deed will accomplish the same result. The deed must be legally effective, the property’s ownership must be correctly identified, and other Florida property laws may affect the transfer.

Why the Deed’s Language Matters

The enhanced powers need to be clearly established in the deed.

A Florida appellate case illustrates what can happen when the language is unclear. In Hirschenson, the deed contained inconsistent language concerning the power to mortgage the property. The resulting dispute required the court to determine what the deed actually meant, and the trial court ultimately reformed the deed. The appellate court affirmed that decision.

This is why a Lady Bird Deed should not simply be copied from an unidentified online form.

Can You Sell or Mortgage the Property?

A properly drafted enhanced life estate deed can preserve the owner’s ability to sell or mortgage the property without obtaining the future beneficiary’s consent.

That retained control is one of the defining characteristics of the arrangement.

However, the specific deed should be reviewed before a sale or mortgage. The deed’s wording, the property’s current title, and the requirements of the lender or title company can all matter.

What If the Beneficiary Dies First?

This depends on how the deed was drafted.

If the named beneficiary dies before the property owner, the deed should be reviewed to determine what happens to that person’s future interest. The owner may want to name alternate beneficiaries or include other provisions addressing this possibility.

This is one reason the beneficiary provisions should be considered carefully when the deed is prepared.

What If the Property Is Florida Homestead?

Homestead property requires additional care.

Florida law places special restrictions on the disposition of homestead, particularly when the owner has a spouse or minor children. Sections 732.4015 and 732.4017 of the Florida Statutes address important rules concerning homestead and lifetime transfers.

A Lady Bird Deed involving a Florida homestead therefore should not be evaluated solely on whether it can avoid probate. The owner’s family situation, title, and homestead status should all be considered before the deed is prepared.

Florida attorney reviewing Lady Bird Deed with client during estate planning consultation

Who Actually Owns the Property?

Before preparing the deed, it is important to determine how the property is currently titled.

For example, the property may be owned individually, jointly, through a trust, or subject to an existing interest.

In Johnson v. Johnson, Florida’s First District Court of Appeal considered enhanced life estate deeds that had been prepared in an individual’s name even though the properties were actually held by a living trust. The court affirmed reformation of the deeds based on the evidence concerning the mistake.

The practical lesson is simple: the current deed and ownership records should be checked before preparing a new conveyance.

When Might a Lady Bird Deed Be Useful?

A Florida property owner may consider an enhanced life estate deed when the goal is to:

  • Retain control of the property during life
  • Continue living in the property
  • Designate who should receive it after death
  • Preserve the ability to sell or mortgage the property
  • Potentially transfer the property outside probate

It may not be appropriate for every estate plan. More complicated family circumstances, multiple properties, trusts, creditor issues, or other planning concerns may call for a different approach.

For a detailed comparison between this type of deed and a revocable living trust, see Florida Lady Bird Deed vs. Revocable Living Trust for Real Estate.

Florida Lady Bird Deed FAQs

What is a Lady Bird Deed in Florida?

  • It is an enhanced life estate deed that allows a property owner to retain substantial control over real estate while designating who should receive the property after the owner’s death.

Does a Lady Bird Deed avoid probate?

  • A properly drafted and effective deed can allow the property to pass to the designated beneficiary outside the ordinary probate process.

Is a Lady Bird Deed the same as a life estate?

  • No. A Lady Bird Deed is an enhanced form of life estate that can reserve significantly greater powers for the original owner.

Can I sell my house after signing a Lady Bird Deed?

  • Generally, an enhanced life estate can preserve the owner’s power to sell or convey the property without the beneficiary’s consent. The specific deed should be reviewed to confirm the powers it reserves.

Can I mortgage property with a Lady Bird Deed?

  • A properly drafted deed can reserve the owner’s power to mortgage the property. The exact language matters.

What happens when the owner dies?

  • If the deed remains effective and the property has not otherwise been conveyed, the designated beneficiary can receive the property according to the deed’s terms, potentially without probate.

Does a Lady Bird Deed work for Florida homestead?

  • It can, but Florida’s homestead rules create additional considerations involving spouses, minor children, and the owner’s particular circumstances.

Florida Estate Planning Attorneys Serving South Florida

A Lady Bird Deed can be a useful way to plan for the future of Florida real estate while retaining control during life. But the deed needs to match the property’s title and the owner’s circumstances.

My Personal Attorneys assists clients with estate planning and probate matters in Coral Springs, Fort Lauderdale, Broward County, and throughout South Florida.

Call 954-334-1520 to discuss your estate planning needs and determine whether an enhanced life estate deed is appropriate for your situation.

What Is a Revocable Living Trust in Florida?

Posted on | by mP@
Florida home representing a revocable living trust and long term estate plan

A revocable living trust in Florida is an estate planning arrangement that allows a person to manage property during their lifetime and establish how that property will be managed or distributed after death. Because the trust is revocable, the person who creates it generally retains the ability to change or revoke it while they have the required capacity.

For many Florida families, the appeal of a revocable living trust is not simply avoiding probate. A properly structured and funded trust can also provide a framework for managing assets during incapacity, establish clear instructions for what happens after death, and give a successor trustee authority to step in when the original trustee can no longer serve.

But a trust only works as intended when the legal document, the ownership of the property, and the rest of the estate plan are coordinated.

What Is a Revocable Living Trust?

A revocable living trust is a legal arrangement created during a person’s lifetime.

The person who creates the trust is commonly called the settlor or grantor. The person responsible for managing property held by the trust is the trustee. The people or organizations who are intended to receive trust property are the beneficiaries.

One of the most common arrangements is for the person creating the trust to serve as the initial trustee. That allows the person to continue managing their property much as they did before creating the trust.

The trust document establishes the rules for managing the property and identifies what should happen if the creator becomes incapacitated or dies.

Florida’s Trust Code generally permits a settlor to revoke or amend a trust unless the trust terms make it irrevocable.

What does “revocable” mean?

It means the trust can generally be changed or terminated during the settlor’s lifetime, subject to the terms of the trust and applicable Florida law.

That flexibility is one of the defining characteristics of a revocable living trust. Creating one does not ordinarily mean giving up control of your property immediately.

Who Is Involved in a Revocable Trust?

A typical revocable living trust involves several roles.

Settlor or grantor

The settlor is the person who creates the trust and transfers property into it.

An individual can create a trust for their own benefit, while a married couple may use a joint or coordinated estate planning structure depending on their circumstances.

Trustee

The trustee manages property held by the trust according to its terms.

In a common revocable trust arrangement, the settlor also serves as trustee during their lifetime. This allows the person to continue managing trust property while they are able to do so.

Successor trustee

The successor trustee is the person or institution designated to take over management when the original trustee can no longer serve.

Choosing this person is an important part of the planning process. The successor may eventually be responsible for managing trust property during incapacity and administering the trust after death.

Beneficiaries

Beneficiaries are the people or organizations who are intended to benefit from the trust.

The trust can establish who receives property, when they receive it, and under what conditions or instructions the trustee must administer it.

What Happens While You Are Alive?

A revocable living trust is not simply a document that sits in a drawer until someone dies.

If you are the settlor and trustee, you can generally continue using and managing trust property according to the terms of the trust. You can also generally amend the trust as circumstances change.

That can make the trust useful as part of lifetime estate planning, rather than simply as a death-transfer document.

For example, your estate plan may need to change because of:

  • Marriage or divorce
  • The birth or adoption of a child
  • A beneficiary’s changing circumstances
  • A change in property ownership
  • The purchase or sale of real estate
  • A change in the person you want to serve as successor trustee
  • Changes in your financial circumstances

The trust should therefore be reviewed when major life or financial changes occur.

Alan J. Reinfeld: “A revocable trust is not simply a document you sign and put away. It is a way of organizing your property so that someone you trust can manage it if you become unable to do so and carry out your instructions after your death.”

What Happens If You Become Incapacitated?

One of the important differences between a revocable trust and a basic will is what the trust can do during your lifetime.

If you become unable to manage your financial affairs, a properly structured trust can allow your successor trustee to step in and manage property held by the trust.

The Florida Bar identifies this as one of the potential advantages of a revocable trust. Depending on the circumstances, the successor trustee may be able to continue managing trust assets, paying bills, and making financial decisions without requiring a court-appointed guardian of the person’s property.

This does not mean a trust eliminates every possible incapacity issue. The trust needs to be properly drafted, and the relevant assets need to be held or otherwise coordinated with the trust.

Successor trustee reviewing Florida estate planning documents for a family trust

What Does “Funding” a Trust Mean?

Funding a trust means transferring appropriate property into the trust or otherwise coordinating ownership so that the trust can actually operate as intended.

This is one of the most important and frequently misunderstood parts of trust planning.

Signing a trust agreement does not automatically place every asset you own into the trust.

For example, if a person creates a revocable trust but leaves an important asset titled solely in their individual name, that asset may not receive the same probate-avoidance treatment as property properly held by the trust.

The Florida Bar specifically warns that assets such as real estate, bank accounts, and investments generally need to be formally transferred to the trust to obtain the maximum benefit from the arrangement.

That is why creating the document is only one part of establishing a functioning trust plan.

Alan J. Reinfeld: “One of the most important parts of creating a trust happens after the document is signed. If an asset is supposed to be managed through the trust, the ownership needs to be properly coordinated with the trust. An unfunded trust may not accomplish what the person who created it expected.”

What assets can be placed in a trust?

The answer depends on the type of asset, its ownership structure, applicable law, beneficiary designations, and the objectives of the estate plan.

Real estate, financial accounts, investments, and other property may potentially be coordinated with a trust, but they should not all be treated identically.

For a more detailed discussion of this issue, see What Assets Can a Trust Hold in Florida?

That distinction matters because what a trust is and what should be placed into a trust are related but separate estate planning questions.

Does a Revocable Trust Avoid Probate in Florida?

A properly funded revocable trust can allow property held by the trust to pass to beneficiaries without going through the ordinary probate process.

The reason is straightforward: the trustee already has authority to manage the trust property. The property does not have to be transferred from the deceased person’s individual ownership through a probate proceeding in the same way individually owned assets generally do.

However, saying that a revocable trust “avoids probate” without qualification is misleading.

The trust does not automatically control everything you own.

Assets that were never properly transferred to the trust may still require another method of administration after death. A pour-over will is commonly used as part of a revocable trust estate plan to address property that remains outside the trust.

Other assets may pass outside probate for entirely different reasons, including certain joint ownership arrangements or valid beneficiary designations.

So the real question is not simply:

“Did I sign a trust?”

It is:

“Is the property I want handled through the trust actually coordinated with the trust?”

What Happens to a Revocable Trust After Death?

When the settlor dies, the revocable trust generally becomes an important part of the estate administration process.

The successor trustee may need to:

  1. Identify and secure trust property.
  2. Review the trust’s instructions.
  3. Determine what expenses and obligations must be addressed.
  4. Deal with claims and required administration.
  5. Manage or sell property when authorized or necessary.
  6. Distribute property to the beneficiaries according to the trust terms.

Avoiding ordinary probate does not mean that nothing has to be done after death.

Trust administration can still involve legal, financial, and tax issues. Florida law also contains specific procedures involving a Notice of Trust in certain circumstances following a settlor’s death.

The successor trustee therefore has real responsibilities. The person chosen for that role should be capable of following the trust instructions and handling the administrative work that follows.

Devin P. Tison: “The best estate plan is one that makes the owner’s intentions clear before the family is forced to interpret them under pressure. A trust can provide that structure, but the document and the ownership of the assets need to work together.”

Revocable Trust vs. Will: What Is the Difference?

A will and a revocable living trust can serve different functions and are often used together.

A will generally takes effect at death and can identify beneficiaries, nominate a personal representative, and address property that passes through probate.

A revocable trust can operate during the settlor’s lifetime and can provide a framework for managing trust property during incapacity and after death.

A person who uses a revocable trust will commonly also have a will as part of the broader estate plan.

The important point is that a trust is not necessarily a replacement for every other estate planning document.

Does a Revocable Living Trust Protect Assets From Creditors?

Not generally for the person who created the trust.

This is an important correction to a common misconception about living trusts.

Under Florida Statutes §736.0505, property held in a revocable trust remains subject to the claims of the settlor’s creditors during the settlor’s lifetime to the extent that the property would have been reachable if the settlor owned it directly.

A revocable living trust should therefore not be presented as an automatic asset-protection device.

Different rules can apply to irrevocable trusts and to protections available to beneficiaries, which is a separate and more specialized area of trust planning.

Does a Revocable Trust Automatically Save Estate Taxes?

No.

A standard revocable living trust should not be described as an automatic estate-tax reduction strategy.

There can be circumstances in which trust planning is incorporated into a broader estate-tax strategy, including specialized provisions and irrevocable trusts. But those issues depend on the size and structure of the estate, the people involved, the applicable tax rules, and the objectives of the plan.

For 2026, the federal basic estate tax exclusion is $15 million per decedent.

That makes the tax discussion very different from older explanations that use figures such as $5.34 million or $10.68 million.

For a detailed discussion, see Can a Revocable Living Trust Reduce Estate Taxes in Florida?

The key distinction is simple: a revocable trust can be an important estate planning tool without being, by itself, an estate-tax savings strategy.

Revocable vs. Irrevocable Trusts

The difference between revocable and irrevocable trusts is fundamental.

A revocable trust generally allows the settlor to retain substantial control and the ability to amend or revoke the trust.

An irrevocable trust generally involves a greater restriction on the settlor’s ability to change or reclaim the trust property.

Irrevocable trusts can serve specialized estate planning, tax planning, and asset-protection purposes, but they involve different legal consequences and should not simply be treated as a more powerful version of a revocable trust.

For that reason, choosing between them requires looking at the purpose of the plan rather than starting with the assumption that one type is always better.

Who Should Consider a Revocable Living Trust in Florida?

A revocable living trust may be worth considering for people who want a structured plan for managing property during life and transferring it after death.

It can be particularly relevant when someone:

  • Owns Florida real estate or other significant property
  • Wants a successor trustee prepared to manage trust property during incapacity
  • Wants to organize the administration of an estate before death
  • Wants certain properly funded assets to pass outside ordinary probate
  • Has a family situation requiring more detailed instructions than a simple will may provide
  • Wants a coordinated estate plan that can be reviewed as circumstances change

But a trust is not automatically necessary for every Florida resident.

The right estate plan depends on the person’s property, family circumstances, goals, existing ownership arrangements, and the complexity of the intended plan.

Common Revocable Trust Mistakes

Some of the biggest problems with revocable trusts occur after the document has been signed.

Creating the trust but failing to fund it

A trust that does not actually hold the relevant property may not accomplish the probate-avoidance objectives the creator expected.

Treating every asset the same way

Different forms of property may require different ownership or beneficiary arrangements. Retitling everything without considering those differences can create unintended consequences.

Choosing a successor trustee casually

The successor trustee may eventually be responsible for substantial financial and administrative decisions. This should not be an afterthought.

Never reviewing the plan

A trust created years ago may no longer reflect current property, beneficiaries, family relationships, or financial circumstances.

Assuming the trust solves every estate planning issue

A revocable trust does not automatically provide creditor protection, eliminate taxes, or replace every other estate planning document.

Devin P. Tison: “Creating a trust does not automatically solve every estate planning problem. The important question is whether the trust was properly structured, whether the relevant assets were actually placed into it, and whether the plan addresses what happens when circumstances change.”

Frequently Asked Questions About Revocable Living Trusts in Florida

Is a revocable living trust the same as a living trust?

  • Generally, the terms are used to describe a trust created during the settlor’s lifetime. A revocable living trust is specifically a living trust that the settlor can generally amend or revoke under its terms and applicable law.

Does a revocable trust avoid probate in Florida?

  • Properly funded trust assets can generally pass to beneficiaries without going through ordinary probate. However, creating a trust does not automatically place every asset into it, and assets outside the trust may require another method of administration.

Can I still use my property after putting it in a revocable trust?

  • In a typical arrangement where the settlor remains trustee and beneficiary, the settlor can generally continue to manage and use trust property during life according to the trust terms.

What happens to my trust if I become incapacitated?

  • A properly drafted trust can allow a successor trustee to step in and manage trust property if the original trustee can no longer do so. This can help avoid the need for a court-appointed guardian of property in appropriate circumstances.

Does a revocable trust protect my assets from lawsuits?

  • A revocable trust generally does not protect the settlor’s assets from the settlor’s own creditors during life. Florida law specifically addresses creditors’ ability to reach revocable-trust property.

Does a revocable trust reduce estate taxes?

  • Not automatically. Tax planning may involve trusts and other strategies, but a standard revocable living trust should not be presented as an automatic estate-tax reduction tool.

Do I still need a will if I have a revocable trust?

  • Often, yes. A will can address property that was not transferred to the trust and can serve other estate planning purposes. The exact documents needed depend on the overall estate plan.

Planning a Revocable Living Trust in South Florida

For families in Coral Springs, Fort Lauderdale, Broward County, and throughout South Florida, creating a revocable living trust should be approached as an estate planning process rather than simply the preparation of a document.

The trust agreement is one part of the plan. Ownership of property, beneficiary designations, successor trustee arrangements, wills, and the person’s broader estate planning objectives also need to work together.

At My Personal Attorneys, our attorneys help Florida clients evaluate their estate planning options and develop plans designed around their property, family circumstances, and long-term objectives.

If you are considering a revocable living trust, the important questions are not simply whether a trust is popular or whether someone else has one. The important questions are what you want the trust to accomplish, what property should be coordinated with it, and what should happen if you become incapacitated or die.

Related Trust Planning Resources

  • What Assets Can a Trust Hold in Florida?
  • Can a Revocable Living Trust Reduce Estate Taxes in Florida?
  • Revocable vs. Irrevocable Trusts in Florida
  • What Happens If a Trust Is Not Properly Funded?
  • What Happens to a Trust After Someone Dies in Florida?
  • Florida Lady Bird Deed vs. Revocable Living Trust for Real Estate

Estate Planning Definitions: Wills, Trusts, and Probate in Florida

Posted on | by mP@
A South Florida estate planning attorney desk displaying three organized files for a last will, revocable living trust, and probate court administration folder.

Estate planning involves several legal terms that can be confusing if you are encountering them for the first time. Will, trust, and probate are among the most important.

Although these concepts are related, they serve different purposes. Understanding the basic differences can help you determine what questions to discuss with an estate planning attorney in Coral Springs and throughout South Florida.

What Is a Will?

A will is a legal document that provides instructions for what should happen to certain property after a person dies. In Florida, a valid will must meet specific legal requirements concerning its execution and witnessing.

A will can identify the beneficiaries who should receive probate assets and can name the person who should serve as the estate’s personal representative, which is Florida’s term for what many people call an executor.

A will can also be used to nominate a guardian for minor children.

Importantly, a will does not necessarily control every asset a person owns. Certain assets may pass outside probate through beneficiary designations, joint ownership, or other arrangements.

A will also does not take effect during the person’s lifetime. It becomes operative at death.

What Is a Trust?

A trust is a legal arrangement in which property is held and managed by a trustee for the benefit of one or more beneficiaries.

Unlike a will, a trust can operate during a person’s lifetime. For example, a revocable living trust can allow someone to continue managing property during life while establishing instructions for what should happen if that person becomes incapacitated or dies.

A trust can therefore serve purposes that go beyond distributing property after death. Depending on how it is structured and funded, it may provide a framework for managing assets during incapacity, distributing property to beneficiaries over time, and avoiding probate for assets properly transferred to the trust.

A useful way to think about a trust is as an ongoing legal arrangement for managing property. The person who creates the trust establishes its terms, a trustee manages the trust property, and beneficiaries receive the benefits according to those terms.

What Is Probate?

Probate is the court-supervised legal process used to administer a deceased person’s probate estate.

In Florida, probate generally involves identifying and gathering the decedent’s probate assets, addressing valid debts and expenses, and distributing the remaining assets to the appropriate beneficiaries.

Probate does not necessarily involve every asset a person owned. Some property may pass outside probate through a trust, beneficiary designation, joint ownership, or another legal mechanism.

Florida has different probate procedures depending on the circumstances of the estate, including formal administration and summary administration.

Will vs. Trust: What Is the Difference?

A will and a trust can both be part of an estate plan, but they work differently.

The most basic distinction is that a will generally operates after death, while a properly created and funded trust can operate during a person’s lifetime as well as after death.

Other differences may also matter when deciding how an estate plan should be structured.

Probate

Assets that are distributed through a will generally pass through probate. Assets properly held in a trust may generally be distributed by the trustee without going through the probate process for those assets.

This distinction is one reason some people use trusts as part of a broader plan to simplify the transfer of assets after death.

Privacy

Probate is a court process, while the administration of a private trust generally does not operate in exactly the same public court process.

For people who place a high value on privacy, this can be an important consideration when discussing a trust with an estate planning attorney.

Incapacity Planning

A will does not provide a mechanism for managing a person’s property while that person is alive but unable to manage it because of incapacity.

A properly structured trust can provide instructions for who will manage trust property if the person who created the trust becomes unable to do so.

Other estate planning documents, including powers of attorney and advance directives, may also be important for incapacity planning.

Minor Children and Beneficiaries

A will can be used to nominate a guardian for minor children.

A trust can provide instructions for how and when trust assets should be distributed to children, grandchildren, or other beneficiaries. For example, the trust may establish that assets should be managed for a beneficiary rather than distributed to that person all at once.

Cost and Administration

A trust can involve greater upfront planning and administration than a basic will. Particularly because assets generally need to be properly transferred to and managed through the trust.

That does not mean a trust is always more expensive overall. The appropriate comparison depends on the person’s circumstances. For example the type of trust involved, the assets being managed, and the complexity of the estate plan.

Management of Assets

A will provides instructions for property at death, while a trust involves the ongoing management of property placed into the trust.

This distinction is important. Simply creating a trust does not automatically place every asset a person owns into that trust. Proper funding and coordination with the rest of the estate plan are essential.

How Do Wills, Trusts, and Probate Work in Florida?

Florida law governs the creation and administration of estates for people whose estates are subject to Florida jurisdiction. Florida also uses the term personal representative for the person appointed to administer a probate estate.

The Florida probate process can take different forms depending on the circumstances of the estate. For example, formal administration may be used for more complex estates, while summary administration may be available when the estate meets certain requirements.

Florida residents may also use trusts and other estate planning tools to determine how property will be managed and transferred. Whether a particular strategy is appropriate depends on the person’s assets, family circumstances, and estate planning goals.

For someone in Coral Springs, Fort Lauderdale, or elsewhere in Broward County, an estate plan should therefore be evaluated under the laws and procedures that apply in Florida rather than relying solely on general estate planning information from another state.

A South Florida estate planning attorney desk displaying three organized files for a last will, revocable living trust, and probate court administration folder.

Can You Have Both a Will and a Trust?

Yes.

A trust and a will are not necessarily competing alternatives. Many estate plans use both.

For example, a person may establish a revocable living trust to hold and manage certain assets while also maintaining a will that addresses matters the trust does not cover, including the nomination of a guardian for minor children.

The way these documents work together depends on the individual’s circumstances and the structure of the estate plan.

Which Is Better: A Will or a Trust?

There is no single answer that applies to every family.

For some people, a will may address their primary estate planning needs. Others may benefit from a trust because they want a plan for managing assets during incapacity, controlling how beneficiaries receive property, or keeping certain assets outside the probate process.

The answer can depend on factors such as:

  • The type and value of your assets
  • Whether you own real estate
  • Whether you have minor children
  • Your family circumstances
  • Whether you want a plan for possible incapacity
  • How you want beneficiaries to receive their inheritance
  • Whether avoiding probate is an important goal
  • The complexity of your estate

An estate planning attorney can review these factors and explain which documents may be appropriate for your circumstances.

Frequently Asked Questions About Wills, Trusts, and Probate in Florida

Does a Will Avoid Probate in Florida?

  • Generally, no. Assets that pass under a will are typically subject to the Florida probate process unless another legal arrangement causes those assets to pass outside probate.

Does a Trust Avoid Probate in Florida?

  • A properly created and funded trust can generally allow assets held by the trust to pass to beneficiaries without going through probate. However, creating a trust alone does not automatically place all of a person’s assets into the trust.

Do I Need Both a Will and a Trust in Florida?

  • Not necessarily. Some people may have estate planning needs that can be addressed primarily through a will, while others may benefit from a trust and additional estate planning documents. The appropriate combination depends on the person’s circumstances and goals.

Estate Planning in Coral Springs and South Florida

Wills, trusts, and probate are closely related, but they solve different legal problems. Understanding the terminology is a useful first step, but creating an effective estate plan requires looking at how the different documents and assets work together.

If you are considering a will, trust, or other estate planning document, speak with a qualified Coral Springs estate planning attorney about your circumstances.

Call our Coral Springs probate and estate planning attorneys at 954-334-1520.

Understanding the Florida Probate Process: What Happens After Someone Dies?

Posted on | by mP@
Florida probate process documents and estate administration materials on a legal desk

When someone dies, their family may need to go through probate before certain assets can be transferred to the people entitled to receive them. Probate is a court supervised process used to identify and gather probate assets, address valid debts and creditor claims, and distribute the remaining property according to the will or Florida law.

For families in Coral Springs, Broward County, and throughout South Florida, the process can raise practical questions quickly. Which assets have to go through probate? Who handles the estate? How are creditors paid? How long does the process take? And does every estate requi3re the same type of probate administration?

The answers depend on the assets involved, the existence and terms of a will, the value of the estate, creditor issues, and other circumstances.

What Is Probate in Florida?

Probate is a legal process for administering a deceased person’s probate estate. Florida courts describe probate as a court supervised process for identifying and gathering assets, paying debts, and distributing assets to beneficiaries. Probate generally applies only to probate assets, rather than everything the deceased person owned.

A probate asset may include a bank or investment account held solely in the deceased person’s name, or certain real property owned individually by the deceased. Assets with a valid mechanism for passing automatically to another person may not need to be administered through probate.

This distinction matters because a person’s total property does not necessarily equal the property that must be handled through a probate proceeding.

What Are the Steps in the Florida Probate Process?

Although every estate is different, a probate administration commonly involves several stages.

1. The probate case is opened

The proceeding is generally filed with the clerk of the circuit court in the appropriate Florida county. Venue is ordinarily based on the deceased person’s domicile at the time of death.

The documents required at the beginning of the case depend on the circumstances, including whether the deceased person left a will and which type of administration is appropriate.

2. The will is submitted to the court, if there is one

If the deceased left a will, it must be presented to the probate court and admitted according to Florida law.

A will does not, by itself, transfer every asset immediately to the people named in it. Probate may still be necessary to establish the authority to administer probate assets and complete the estate administration.

If there is no valid will governing the property, Florida’s intestacy laws determine who is entitled to inherit.

3. A personal representative is appointed

Florida generally uses the term personal representative for the person appointed to administer a probate estate.

The personal representative’s responsibilities can include identifying estate assets, dealing with creditors, protecting estate property, paying authorized expenses and obligations, and eventually distributing assets to the appropriate beneficiaries or heirs.

The personal representative is a fiduciary. Florida law requires that person to administer and distribute the estate consistently with the will and the law and to act in the best interests of the estate and interested persons.

The person nominated in a will may have priority for appointment, although the court must still apply Florida’s statutory requirements concerning who may serve.

4. The estate’s assets are identified and gathered

The personal representative must determine what property belongs to the probate estate and take the steps necessary to administer those assets.

This can involve locating financial accounts, real property, personal property, business interests, or other assets. It can also require determining whether particular assets pass outside probate because of joint ownership, beneficiary designations, trusts, or other arrangements.

This is one reason a probate case cannot always be understood simply by looking at the deceased person’s will.

5. Creditors are given an opportunity to file claims

An estate may have outstanding debts when someone dies. Florida law provides procedures for notifying creditors and establishing deadlines for claims against the estate.

A creditor’s claim generally must be filed within the applicable statutory period. Under Florida Statutes section 733.702, many claims must be filed no later than the later of three months after the first publication of the notice to creditors or 30 days after service of the notice on a creditor who is required to receive it. Untimely claims can be barred, subject to limited statutory exceptions.

The personal representative may also have to evaluate and respond to claims filed against the estate. A disputed claim can create additional proceedings and delay the administration.

6. Valid expenses and obligations are paid

Not every debt or expense is treated identically.

Florida law establishes an order of priority for paying expenses and obligations of an estate. Administration expenses, certain funeral expenses, specified taxes and debts, certain medical expenses, family allowances, and other obligations fall into statutory classes.

This means that simply finding a debt does not necessarily answer the question of whether, when, or how it will be paid.

7. Remaining assets are distributed

After the estate’s obligations have been addressed and the requirements for distribution have been satisfied, the remaining probate assets can be distributed to the beneficiaries named in the will or to the heirs entitled to receive property under Florida’s intestacy laws.

The personal representative must follow the governing legal documents and Florida law rather than simply distributing property according to informal family agreements.

8. The estate is closed

The final stage involves completing the administration and taking the steps required to close the probate estate.

The timing varies considerably. A straightforward estate with few assets and no disputes can be very different from an estate involving contested claims, difficult-to-value property, creditor disputes, litigation, or disagreements among beneficiaries.

Does Every Florida Estate Go Through the Same Probate Process?

No.

Florida recognizes formal administration and summary administration, along with limited circumstances in which certain personal property can be transferred without a formal administration.

Formal Administration

Formal administration is the more extensive probate procedure. It can involve the appointment of a personal representative, administration of estate assets, creditor procedures, payment of obligations, and distribution of the remaining property.

It is generally used when the circumstances of the estate require a full administration.

Summary Administration

Summary administration is a shorter procedure available when the statutory requirements are met.

Under current Florida law, summary administration may be available when the value of the estate subject to administration, after accounting for property exempt from creditor claims, does not exceed $150,000, or when the deceased person has been dead for more than two years.

The court can enter an order directing distribution of the estate’s assets, but summary administration still involves legal requirements concerning beneficiaries, assets, and creditors.

A smaller estate is therefore not automatically the same thing as an estate that requires no probate.

Documents representing the steps of probate administration in Florida

How Long Does Probate Take in Florida?

There is no single timeline that applies to every Florida probate case.

The length of an estate administration can depend on:

  • The type of probate administration
  • The number and nature of the estate’s assets
  • Whether real estate must be transferred or sold
  • Whether creditors file claims
  • Whether a claim is disputed
  • Whether beneficiaries disagree
  • Whether litigation becomes necessary
  • Whether assets are difficult to locate or value
  • Whether tax or other financial issues require additional work

Creditor procedures can also create important timing requirements. For example, Florida law establishes specific periods for filing and objecting to creditor claims and provides rules governing when certain claims may be paid.

For that reason, estimates based solely on the size of an estate can be misleading.

What Happens If Family Members Disagree During Probate?

Probate does not automatically prevent disputes between beneficiaries, heirs, creditors, or the personal representative.

Disagreements can involve the validity or interpretation of a will, the identification or valuation of assets, creditor claims, the conduct of the personal representative, or the proposed distribution of estate property.

Some issues can be resolved without extended litigation. Others require court intervention.

The personal representative has fiduciary duties during administration, and Florida law provides procedures for addressing problems involving the administration of an estate.

Does Having a Will Avoid Probate in Florida?

Not necessarily.

A will tells the court how the deceased person wants certain property distributed, but having a will does not automatically eliminate the need for probate.

Whether an asset passes through probate depends on how that asset is owned and whether another legal mechanism controls its transfer at death.

This is why estate planning and probate are related but distinct subjects. A person can have a carefully prepared will and still have a probate estate requiring court administration.

Probate attorney workspace serving Coral Springs and Broward County families

When Should You Speak With a Probate Attorney?

Professional advice can be particularly important when an estate includes significant assets, real property, creditor issues, business interests, disputed claims, beneficiary disagreements, or questions about the personal representative’s conduct.

The right approach also depends on whether the estate qualifies for summary administration or requires formal administration.

For families in Coral Springs, Broward County, and South Florida, understanding the type of estate involved is often the first step toward understanding what the probate process will actually require.

Frequently Asked Questions About the Florida Probate Process

What is the first step in probate in Florida?

  • The first step depends on the circumstances of the estate, but probate generally begins with filing the appropriate documents with the circuit court in the proper county. If there is a will, it is submitted to the court as part of the probate process.

How long does probate take in Florida?

  • There is no fixed timeline for every estate. The length depends on the type of administration, the assets involved, creditor issues, disputes, and other circumstances.

What is the difference between formal and summary probate in Florida?

  • Formal administration is the more extensive probate procedure. Summary administration is a shorter procedure available when statutory requirements are satisfied, including the current $150,000 estate value threshold or the alternative two year period after death.

Does every asset have to go through probate?

  • No. Probate generally applies to probate assets. Certain jointly owned assets, beneficiary designated accounts, and other property may pass outside probate depending on how they are structured.

What does a personal representative do?

  • A personal representative administers the estate. Duties can include gathering assets, dealing with creditor claims, paying authorized expenses and obligations, and distributing property according to the will and Florida law. The personal representative also has fiduciary duties to the estate and interested persons.

Can probate become a lawsuit?

  • Yes. Probate is a court proceeding, and disputes concerning wills, assets, creditor claims, beneficiaries, or estate administration can require litigation or other contested proceedings.

Can a Florida estate avoid formal probate?

  • Sometimes. Florida law provides summary administration for qualifying estates and limited procedures for disposing of certain personal property without administration. Whether one of these alternatives applies depends on the specific facts of the estate.

Probate Guidance for Families in Coral Springs and Broward County

Probate is not one identical process for every Florida family. The appropriate procedure depends on the person’s assets, debts, estate planning documents, beneficiaries, and other circumstances.

If you are dealing with an estate in Coral Springs, Broward County, or elsewhere in South Florida, a probate attorney can review the circumstances and explain which type of administration may apply and what steps are likely to follow.

How Do the Pieces of an Estate Plan Work Together?

Posted on | by mP@
Infographic illustrating how wills, trusts, and asset titles integrate into a unified estate planning system

Direct Answer:

An estate plan under Florida law is not a single isolated document, but an interlocking system of distinct legal instruments.

To function effectively, it coordinates asset titling (how property is owned), contractual beneficiary designations (such as life insurance and retirement accounts that bypass probate), revocable living trusts (for private asset management), and a Last Will and Testament (which acts as an administrative backstop for stray assets and nominates guardians for minor children under the 17th Judicial Circuit probate framework).

Direct Transfer Instruments Beneficiary designations and trusts that bypass probate to route funds directly to intended recipients.
The Backstop Administration Wills and probate courts acting as the administrative safety net for any leftover or stray assets.

A common misconception among clients entering an attorney’s office is that estate planning is merely a shopping exercise. People assume they need to choose between buying a will or setting up a trust. As if these documents were competing consumer products on a shelf.

In practice, a durable estate plan functions less like a single document and more like an interlocking machine. Each piece: whether it is a deed, a beneficiary designation, a trust agreement, or a last will and testament – answers a different legal question about your property, your care, and your family’s future security under Florida law.

Asset Ownership Sets the Foundation

Every legal instrument relies entirely on the underlying registration of your property.

The name on a title holds more legal authority over where property goes than almost any standard clause you can write down. Consider how differently law treats various holdings. A commercial storefront in Coral Springs tied to a corporate entity, a family home structured with survivorship rights, or an ordinary checking account carrying no payable on death instructions. Each follows its own strict statutory track.

Property registration and testamentary instruments point in opposite directions. The title or contractual beneficiary designation almost always supersedes your written documents. For instance, naming a child in a will has no legal effect on a bank account where a different individual is listed as the sole payable on death recipient. A thorough planning process evaluates these existing ownership titles first. Therefore ensuring that deeds, corporate shares, and financial accounts are adjusted or harmonized before any wills or trusts are finalized.

Different Assets Can Follow Different Paths

When an individual passes away, their property does not automatically flow down one universal river. Different asset classes utilize entirely distinct legal conduits:

  • Contractual Transfers: Life insurance policies, retirement accounts, and payable on death bank accounts bypass both wills and trusts entirely. Thus transferring directly to named beneficiaries by operation of contract law.
  • Trust Administration: Assets properly titled in the name of a revocable living trust flow privately through trustee administration without judicial interference.
  • Probate Administration: Assets left solely in an individual name with no beneficiary designation must be processed through the probate court system.

Understanding that these pathways operate simultaneously is the key to grasping how an estate plan actually functions.

The Operational Reality of Financial Accounts and Institutional Payables

A common blind spot in estate planning is assuming that legal documents command absolute authority over every dollar an individual owns. In practice, financial institutions, such as major banks operating in Coral Springs and regional credit unions, don’t act like this. They do not look to your will or trust first when an account holder passes away.

Instead, financial operations are strictly governed by internal institutional protocols and direct account contracts. When a bank representative reviews an account after a death certificate is presented, they execute whatever binding agreement is physically attached to that specific account file. If a bank ledger lists an individual payable on death designation, or if a brokerage account registers a transfer on death instruction, institutional compliance departments are legally bound to disburse those funds directly to the named individual, bypassing any instructions found in a trust agreement or a court supervised will.

An integrated estate plan accounts for this operational friction by auditing every institutional account agreement during the drafting phase. Therefore ensuring that corporate paperwork matches your overarching legal strategy before a financial institution ever faces a disbursement decision.

Where the Will Fits Into the Plan

Rather than acting as the absolute ruler of your entire estate, a Last Will and Testament serves a specific structural purpose within the broader system.

Within an integrated plan, a will functions primarily as a legal backstop. It catches stray assets that were never retitled into a trust. Names guardians for minor children. It also nominates the personal representative to manage the probate administration process if court intervention becomes necessary.

Where a Trust Fits Into the Plan

A revocable living trust operates as an alternative operating system for asset management and distribution.

When properly funded during your lifetime, the trust holds legal title to your major property holdings. Instead of directing asset distribution through public probate filings, the trust instrument coordinates private management rules. It establishes exact conditions for beneficiaries, and governs how assets are handled if you experience temporary or permanent incapacity.

What Happens When Probate Enters the Picture?

Probate is often misunderstood as an estate planning document or a failure of foresight. In a well-coordinated plan, probate is simply recognized for what it is: a judicial administration route.

If certain assets remain outside your trust or lack beneficiary designations, the probate court becomes the mandatory administrative mechanism required to clear title and transfer ownership. The goal of comprehensive planning is not always to eliminate every possibility of court involvement, but to ensure that probate handles only what is necessary while private mechanisms handle the bulk of your wealth.

What Happens When the Pieces Do Not Match?

The most critical test of an estate plan occurs when its individual instruments conflict with one another.

Consider a scenario where an individual executes a trust directing that their financial account be divided equally among three children, but the underlying bank account form lists only one child as a payable on death beneficiary. Under Florida law, the contractual beneficiary designation on the account typically overrides the instructions in the trust or will.

When beneficiary designations, trust agreements, and asset titles point in opposing directions, family disputes and unintended disinheritances frequently follow. Coordination prevents these friction points.

Estate Planning Also Covers Incapacity

An estate plan is incomplete if it focuses exclusively on death. A truly integrated system addresses the reality of potential lifetime incapacity.

Through durable powers of attorney and healthcare surrogate designations, your plan designates trusted individuals to manage financial transactions, sign documents, and make medical decisions if you are unable to speak for yourself. These instruments integrate seamlessly with your property management framework, ensuring continuity whether you are navigating daily life or managing a medical crisis in Broward County.

Professional law office building exterior in Coral Springs Florida serving Broward County estate planning clients.

Frequently Asked Questions

Does having a revocable living trust mean my estate will completely avoid probate in Florida?

  • Not automatically. A trust only avoids probate for assets that were properly titled in the name of the trust during your lifetime. Any remaining individually owned assets left outside the trust at the time of death will still require a probate administration unless alternative transfer mechanisms apply.

Can a beneficiary designation override the instructions written in my last will and testament?

  • Yes. Contractual arrangements such as life insurance policies, retirement accounts, and payable on death bank accounts operate independently of a will. The financial institution distributes funds directly to the named beneficiary on file, regardless of what your will states.

Why is asset titling just as important as drafting a will or trust?

  • Asset titling dictates the legal pathway property travels upon death or incapacity. If your legal documents specify one distribution plan but your deeds or account titles are registered under a conflicting ownership structure, the ownership title or beneficiary form frequently overrides your written documents.

How does local court jurisdiction in Broward County affect the administration of an estate plan?

  • When an estate plan requires judicial oversight, such as formal or summary administration through the 17th Judicial Circuit Court in Broward County, local procedural rules govern how property titles are cleared and distributed.
  • An integrated estate plan accounts for these local court requirements ahead of time, minimizing administrative delays for real estate located in Coral Springs, Parkland, or Fort Lauderdale by ensuring property deeds and trust funding are properly structured before probate ever becomes necessary.

What happens if instructions in a revocable living trust contradict a financial account beneficiary form?

Coordinate Your Estate Plan in Broward County

The goal of estate planning is not to accumulate the largest stack of legal documents. It is to ensure that your ownership titles, beneficiary forms, trusts, and wills work together as a unified system to protect your family and assets.

The attorneys at Reinfeld & Cabrera, P.A. assist clients across Coral Springs and Broward County in evaluating their complete asset picture and building cohesive, integrated estate plans.

Schedule a Confidential Consultation

Ensure your legal instruments work together seamlessly under Florida law:

  • Direct Phone: (954) 866-4878 | (954) 334-1520
  • Coral Springs Main Office: 9625 W Sample Rd, Coral Springs, FL 33065
  • Fort Lauderdale Office: 2933 W Cypress Creek Rd, Suite 201, Ft Lauderdale, FL 33309
  • Website: mypersonalattorneys.com

Estate Planning in Florida: A Guide to Wills, Trusts, and More

Posted on | by mP@
Estate planning for a family in Coral Springs and Broward County

Estate planning is the process of deciding how your property, financial affairs, and health care decisions should be handled during your lifetime, during periods of incapacity, and after your death.

For families in Coral Springs and throughout Broward County, an estate plan may include a will, revocable trust, durable power of attorney, health care surrogate designation, living will, preneed guardian designation, or other documents depending on the person’s circumstances.

There is no single set of documents that every person needs. The important question is whether the plan addresses the situations that could actually affect you and your family.

What Does an Estate Plan Actually Do?

A basic estate plan addresses two different periods of life.

  • During your lifetime, it can establish who may manage financial matters or make health care decisions if you become unable to make those decisions yourself.
  • After your death, it can determine who receives your property, who administers your estate, who manages assets held in trust, and how certain property should be transferred.

Those functions are handled by different documents. A will, for example, does not give someone authority to manage your finances while you are alive. A health care surrogate designation does not determine who inherits your house. A durable power of attorney does not replace a will.

Understanding those distinctions is one of the foundations of effective estate planning.

1. Last Will and Testament

A last will and testament allows you to state how certain property should be distributed after your death and nominate a personal representative to administer your estate.

A will can also address other matters, including the nomination of a guardian for minor children.

But there is an important misconception to avoid:

Having a will does not automatically avoid probate.

A will generally becomes effective through the probate process when it governs probate assets. Property may instead pass outside probate through mechanisms such as joint ownership, beneficiary designations, or a properly funded trust.

Recent Florida litigation illustrates how specific the probate process can become. In Property Solutions Powerhouse, LLC v. Nelson, decided by Florida’s Second District Court of Appeal in 2025, the court addressed a dispute involving a lost will, probate, notice to interested persons, and Florida homestead. The court ultimately upheld the administration and concluded that the decedent, who had no surviving spouse or children, could devise her homestead to the named beneficiary.

The case is a useful reminder that having a will does not mean every question about an estate is automatically settled. The validity of the will, the identity of interested persons, the nature of the property, and Florida’s homestead rules can all matter.

2. Revocable Living Trust

A revocable living trust allows a person to place assets into a trust during life and establish instructions for how those assets should be managed during incapacity and distributed after death.

The person creating the trust can generally retain control while capable and can name a successor trustee to take over management if necessary.

A revocable trust can also help keep properly funded trust assets outside ordinary probate administration. But the trust has to be properly funded. Simply signing a trust agreement does not automatically transfer every asset into it.

The trust is therefore only one part of an estate plan. Its effectiveness depends on how the document is structured, which assets are transferred to it, and how the rest of the estate plan is coordinated.

For a more detailed explanation, see What Is a Revocable Living Trust in Florida?

3. Durable Power of Attorney

A durable power of attorney allows you to authorize another person, called an agent, to act on your behalf within the authority granted by the document.

In Florida, a power of attorney is durable when it contains language showing that the authority continues despite the principal’s subsequent incapacity. Florida law also establishes specific execution requirements, including signing by the principal and two subscribing witnesses and acknowledgment before a notary in the circumstances specified by statute.

The scope of an agent’s authority depends on the powers granted in the document and Florida law.

This is why simply assuming that a spouse or adult child can handle everything for you can create problems. Ownership of a bank account or property does not automatically give another person authority to act on your behalf concerning assets or legal matters that belong to you individually.

A properly prepared power of attorney can be particularly important when someone becomes incapacitated and needs another person to handle financial or legal matters without waiting for a guardianship proceeding.

4. Health Care Surrogate Designation

A health care surrogate designation allows you to name someone to make health care decisions for you if you become unable to make those decisions yourself.

Florida law provides that a designated surrogate may have authority to make health care decisions during the principal’s incapacity, subject to the principal’s instructions and any limitations placed on the surrogate’s authority.

The designation is different from a living will.

  • A health care surrogate designation identifies who may make health care decisions.
  • A living will communicates your wishes concerning life prolonging procedures in specified medical circumstances.

Those documents can work together.

Florida law also provides a mechanism for judicial review when an interested person believes, among other things, that a surrogate’s decision conflicts with the patient’s known wishes, that the advance directive is ambiguous, or that the surrogate has abused their authority.

5. Living Will

A Florida living will allows a competent adult to state preferences concerning life prolonging procedures if the person later has a terminal condition, end stage condition, or is in a persistent vegetative state.

Florida law establishes specific execution requirements and provides that a properly executed living will creates a rebuttable presumption of clear and convincing evidence of the person’s wishes.

A living will therefore serves a different purpose from a health care surrogate designation.

The surrogate is the person who may make health care decisions within the authority granted.

The living will communicates your own instructions about life prolonging treatment in the circumstances covered by the document.

Family discussing future planning and care in Coral Springs

6. Preneed Guardian Designation

Florida law also allows a competent adult to name a preferred guardian in advance.

A preneed guardian designation is a written declaration naming the person the individual wants to serve as guardian if a court later determines that the individual is incapacitated. Florida law requires the declaration to be signed in the presence of at least two witnesses. If an incapacity proceeding is later filed, the declaration creates a rebuttable presumption that the designated person should serve, although the court is not required to appoint someone who is unqualified.

The distinction is important: a preneed guardian designation does not eliminate the possibility of a guardianship proceeding. Instead, it allows the individual to express a preference before incapacity occurs.

When Estate Planning Documents Have to Work Together

Estate planning documents are most useful when they form a coordinated plan rather than a collection of unrelated forms.

For example:

  • A will can address probate assets and nominate a personal representative.
  • A revocable trust can govern assets properly transferred to the trust.
  • A durable power of attorney can authorize an agent to handle financial and legal matters during incapacity.
  • A health care surrogate designation can identify someone to make health care decisions.
  • A living will can communicate wishes concerning life prolonging procedures.
  • A preneed guardian designation can identify a preferred guardian if a guardianship proceeding becomes necessary.

The documents can also interact with beneficiary designations, jointly owned property, retirement accounts, insurance policies, business interests, and real estate.

That is why changing one document without reviewing the rest of the plan can create unintended results.

A Florida Case Shows Why Advance Planning Matters

A recent Florida appellate decision provides an unusually clear example of how these documents can operate together.

In Frank v. Frank, decided by Florida’s Fourth District Court of Appeal in 2026, a woman had executed a durable power of attorney, health care surrogate designation, trust, and will before a guardianship dispute arose. The documents named her daughter, Alicia, to manage her affairs and established her intentions concerning the family home and estate.

The trial court later appointed a different person despite those prior designations. The Fourth District Court of Appeal reversed because the lower court had failed to make the specific findings required to overcome the statutory presumption supporting the woman’s previously expressed choice. The appellate court emphasized that the record showed she had repeatedly confirmed her estate planning decisions before the guardianship dispute.

The case does not mean that a person’s chosen agent or guardian can never be replaced. It demonstrates something more practical: advance planning can provide evidence of a person’s wishes before a family dispute reaches court.

An older Florida Fourth District case, Martinez v. The Guardianship of J. Alan Smith, similarly involved a person who had executed a health care surrogate designation, preneed guardian designation, and durable power of attorney before suffering a serious injury.

The appellate court reversed because the trial court had not made the required finding that the person’s chosen representative was contrary to the ward’s best interests.

What Happens If You Do Nothing?

If you die without a valid will, Florida’s intestacy laws determine who inherits property subject to those laws.

If you become incapacitated without appropriate planning, family members may have to rely on whatever legal mechanisms are available under the circumstances. A guardianship proceeding may become necessary for some decisions, although Florida law recognizes advance directives and other planning tools that can sometimes provide alternatives or affect the scope of a guardianship.

The important point is not that everyone needs every available document.

It is that leaving the decisions entirely to default legal rules may produce a result different from the one you would have chosen yourself.

Estate Planning After Marriage, Divorce, or Other Major Changes

An estate plan should not necessarily remain unchanged for decades.

A major life event may require a review of:

  • Your will
  • Revocable trust
  • Beneficiary designations
  • Durable power of attorney
  • Health care surrogate
  • Living will
  • Preneed guardian designation
  • Ownership of real estate
  • Retirement accounts
  • Life insurance
  • Business interests

Divorce is a particularly important example. Florida law contains rules affecting fiduciary appointments and certain estate planning documents after dissolution proceedings begin or a final judgment is entered. The Florida Bar has noted that durable powers of attorney and health care surrogate designations require particular attention during divorce planning.

A plan should also be reviewed when a beneficiary or fiduciary dies, a child reaches adulthood, substantial assets are acquired or sold, or the person’s family circumstances change.

Estate planning attorney meeting with a family in Coral Springs

A Word From Stuart G. Reinfeld

“The best estate plan is one that makes the owner’s intentions clear before the family is forced to interpret them under pressure. A trust can provide that structure, but the document and the ownership of the assets need to work together.”

That principle applies beyond trusts. Estate planning works best when the documents, property ownership, beneficiary designations, and the person’s actual wishes are coordinated.

Common Estate Planning Questions

Do I need a will if I have a revocable living trust?

  • Often, yes. A will can serve purposes that a revocable trust does not, including addressing assets that were never transferred to the trust and nominating a personal representative or guardian where appropriate. The specific documents needed depend on the estate plan.

Does a will avoid probate in Florida?

  • No. A will generally directs the distribution of probate assets through the probate process. Some property may pass outside probate through trusts, beneficiary designations, joint ownership, or other mechanisms.

What is the difference between a living will and a health care surrogate?

  • A health care surrogate designation identifies someone who can make health care decisions within the authority granted when you cannot make them yourself. A living will communicates your wishes concerning life prolonging procedures in the circumstances covered by Florida law.

Does my spouse automatically have authority to manage everything if I become incapacitated?

  • Not necessarily. Marriage and joint ownership do not automatically give one spouse every legal authority that a properly executed power of attorney or health care designation can provide.

Can I choose who I want as my guardian?

  • Florida allows a competent adult to designate a preferred preneed guardian. The designation creates a rebuttable presumption in favor of the named person, but the court can decline to appoint someone who is unqualified or whose appointment is otherwise contrary to the applicable legal standard.

When should I review my estate plan?

  • Reviewing an estate plan after marriage, divorce, a death in the family, the birth or maturation of children, a major change in assets, a change in beneficiaries, or a significant change in your circumstances can help keep the plan consistent with your current wishes.

Estate Planning for Families in Coral Springs and Broward County

Estate planning is not limited to deciding who receives your property after death. For families in Coral Springs, Broward County, and surrounding South Florida communities, an effective plan can also address incapacity, health care decisions, financial management, real estate, beneficiary designations, trusts, and the administration of an estate.

The appropriate documents depend on the person’s family circumstances, property, financial affairs, and wishes.

A review of an existing plan can also be useful when the documents were prepared years ago or when major changes have occurred in the family or the assets involved.

If you are creating or reviewing an estate plan in Coral Springs or Broward County, an attorney can help evaluate how the different documents and ownership arrangements fit together under Florida law.

Operating Agreement vs. Franchise Agreement: What Is the Difference?

Posted on | by mP@
Coral Springs business representing the relationship between an LLC and a franchise

In simple terms, an operating agreement governs the internal relationship between an LLC and its owners, while a franchise agreement governs the relationship between a franchisor and the business operating under its brand.

An operating agreement answers questions about who owns the LLC, who manages it, how decisions are made, how money is distributed, and what happens when an owner wants to leave.

A franchise agreement answers different questions. It establishes the conditions under which the business can use the franchisor’s trademarks and business system and may address royalties, operating standards, territory, suppliers, training, reporting, renewal, transfer, default, and termination.

A business can be subject to both agreements at the same time. The important question is therefore not which document is more important, but which relationship and legal issue the particular provision addresses.

Understanding that distinction is important before signing either document.

What Is an Operating Agreement?

An operating agreement establishes many of the rules governing a limited liability company and its owners.

Under Florida’s LLC statute, an operating agreement governs relationships among members, relationships between members and the LLC, the rights and duties of managers, the company’s activities and affairs, and the process for amending the agreement. Florida law also permits operating agreements to establish specific consequences when a member or transferee fails to comply with their terms.

An operating agreement may address:

  • Ownership percentages and membership interests
  • Capital contributions
  • Voting rights
  • Management authority
  • Allocation of profits and losses
  • Distributions
  • Member compensation
  • Restrictions on transferring ownership interests
  • Admission of new members
  • Death or incapacity of a member
  • Buyout procedures
  • Dispute resolution
  • Dissolution of the company
  • Procedures for amending the agreement

The operating agreement therefore deals primarily with how the LLC and its owners operate together.

It is also important to distinguish the operating agreement from the LLC’s liability protection. The operating agreement establishes contractual and governance rules. It is not itself what creates the legal distinction between the LLC and its members.

What Does an Operating Agreement Actually Control?

Consider two people who form an LLC to purchase and operate a restaurant.

Their operating agreement might establish that one member owns 60 percent and the other owns 40 percent. It might also determine who manages the company, which decisions require member approval, how profits are distributed, and what happens if one member wants to sell their interest.

Those are internal questions.

The agreement may become particularly important when the owners disagree.

In DiMauro v. Martin, a Florida Fourth District Court of Appeal case involving an LLC created to develop and sell a residence, the parties’ amended operating agreement established obligations involving the property, construction funding, capital contributions, membership interests, and the parties’ responsibilities. Litigation later arose over those obligations. The appellate court rejected the trial court’s conclusion that the operating agreement was unenforceable for lack of mutuality of remedy and consideration, although it ultimately affirmed the denial of specific performance on other grounds.

The practical lesson is that an operating agreement is not merely an administrative document kept in a corporate file. Its provisions can become important evidence of the parties’ rights and obligations when an LLC’s members disagree.

What Is a Franchise Agreement?

A franchise agreement addresses a different relationship.

A franchise agreement is a contract governing the relationship between a franchisor and a franchisee. It generally establishes the conditions under which the franchisee can operate a business associated with the franchisor’s brand and business system.

Federal regulations define a franchise based on three elements: the right to operate under the franchisor’s trademark or other commercial identifier, significant control or assistance concerning the franchisee’s method of operation, and a required payment to the franchisor or an affiliate.

A franchise agreement may address:

  • Use of trademarks and other intellectual property
  • Territory
  • Initial franchise fees
  • Royalties
  • Advertising contributions
  • Required products or suppliers
  • Training
  • Operating standards
  • Reporting requirements
  • Insurance
  • Renewal
  • Transfer of the franchise
  • Defaults and cure periods
  • Termination
  • Post termination obligations
  • Dispute resolution
  • Personal guarantees

A franchise relationship can also involve other documents. The Federal Trade Commission’s Franchise Rule requires covered franchisors to provide prospective franchisees with a Franchise Disclosure Document containing 23 specified categories of information. The FTC states that the FDD generally must be provided at least 14 days before the prospective franchisee is asked to sign a contract or pay money to the franchisor or its affiliate.

For that reason, a prospective franchisee should not evaluate the franchise agreement in isolation.

Operating Agreement vs. Franchise Agreement

The simplest distinction is the relationship each document governs.

Operating AgreementFranchise Agreement
Governs an LLCGoverns a franchise relationship
Primarily concerns the LLC and its members or managersPrimarily concerns the franchisor and franchisee
Establishes internal ownership and governance rulesEstablishes franchise rights and obligations
Addresses voting and management authorityAddresses operation under the franchisor’s brand and system
May establish capital contribution and distribution rulesMay establish fees, royalties and advertising obligations
May restrict transfers of membership interestsMay restrict transfers of the franchise
Addresses internal disputes among ownersAddresses disputes between franchisor and franchisee
May establish buyout and dissolution proceduresMay establish renewal, default and termination procedures

The two documents can therefore apply to the same business without serving the same function.

Business partners operating a franchise in Broward County

Can a Franchise Business Have Both Agreements?

Yes.

This is one of the most important distinctions for a business owner to understand.

Imagine that Maria and David form Sunshine Coffee LLC.

Their operating agreement provides that Maria owns 60 percent of the company and David owns 40 percent. It establishes who manages the LLC, how major decisions are approved, how profits are distributed, and what happens if one member wants to sell an ownership interest.

The LLC then purchases a coffee franchise.

The franchise agreement may require Sunshine Coffee LLC to pay royalties, use the franchisor’s trademarks, follow operating standards, use approved suppliers, maintain insurance, complete required training, and comply with reporting requirements.

The two agreements answer different questions.

If Maria wants to sell her 60 percent ownership interest, the operating agreement may determine what happens inside the LLC.

If the franchisor alleges that Sunshine Coffee LLC violated its brand standards, the franchise agreement may determine the parties’ contractual rights.

A proposed transfer can involve both agreements. The operating agreement may govern the transfer of Maria’s membership interest, while the franchise agreement may require the franchisor’s approval or impose other conditions on the transfer.

The Business May Have More Than Two Important Documents

A franchisee may also have to consider a lease, financing documents, personal guarantees, equipment agreements, development agreements, confidentiality provisions, or other contracts.

The Florida case Rigollet v. Le Macaron Development, LLC illustrates how complicated a franchise relationship can become.

In that case, franchise agreements were accompanied by personal guaranties, a $200,000 loan, and a promissory note. The franchisee’s dispute with the franchisor eventually included claims involving alleged representations about profitability, product quality, and the experience of the franchisor’s personnel. The Florida Second District Court of Appeal reversed dismissal of the franchisee’s counterclaim because the allegations were sufficient to support the claims at the pleading stage.

The court also addressed standing under the Florida Franchise Act. It explained that the person who invested in the franchise has standing under the statute, but the pleadings did not make clear whether the investment had been made by the franchisee entity, the individual, or both.

The same litigation continued into 2025, when the Second District Court of Appeal affirmed the lower court’s ruling in a subsequent appeal.

The practical lesson is important: the legal obligations surrounding a franchise may extend well beyond the basic franchise agreement.

What Happens When a Franchise Relationship Breaks Down?

The terms of a franchise agreement can become particularly important when the relationship between the parties deteriorates.

Case Study: Burger King Franchise Terminations

In Burger King Corp. v. Mason, a long running dispute between Burger King Corporation and a group of franchisees involved development agreements, at least 27 franchise agreements, financing arrangements, leases, supply accounts, royalties, and alleged defaults.

Burger King attempted to terminate all 27 franchises. After extensive litigation and multiple trials, the courts determined that some of the terminations were valid and others were not. In an earlier appeal, the Eleventh Circuit reported that the franchisees ultimately prevailed in nullifying the terminations of 14 franchises, while Burger King successfully defended the termination of 13.

The litigation also addressed what happened after properly terminated franchises continued using Burger King’s trademarks. The court held that continued use of the trademarks after valid termination could constitute trademark infringement.

This case demonstrates why provisions concerning default, termination, renewal, transfer, and trademark use after termination deserve careful attention before a franchise agreement is signed.

Does a Franchise Agreement Give the Franchisor Control Over the Entire Business?

Not necessarily.

Franchise agreements can impose substantial operating requirements while leaving the franchisee as an independently owned business.

In Ferrer v. Jewelry Repair Enterprises, Inc., the Florida Fourth District Court of Appeal considered whether a franchisor could be held responsible for an injury caused by the owner of a franchisee.

The franchise agreement required standardization of products and services and contemplated regular support from the franchisor. But the court found that the agreement did not give the franchisor substantial control over the franchisee’s day to day management. The franchisee remained an independently operated entity with authority over hiring and firing employees. The court therefore affirmed summary judgment for the franchisor.

The case illustrates an important point: franchise standards and franchisor control are not necessarily the same thing.

The specific language of the agreement can matter when a dispute later concerns responsibility for the franchisee’s conduct.

What Should You Review in an Operating Agreement?

Before signing an operating agreement, business owners should understand how it addresses situations that could create disagreements later.

Ownership

  • Who owns the LLC, and in what percentages?

Management

  • Who has authority to make ordinary business decisions? Which decisions require approval from other members?

Money

  • How are capital contributions, profits, losses, and distributions handled?

Transfers

  • Can a member sell or transfer an ownership interest freely, or must the other members or the company approve the transaction?

Death or Incapacity

  • What happens if a member dies or becomes unable to participate in the business?

Disputes

  • What happens if the owners disagree about a major business decision?

Exit and Dissolution

  • How can an owner leave the company, and what happens if the LLC ultimately needs to wind down?

Florida law gives operating agreements substantial flexibility, but that flexibility has statutory limits. For example, an operating agreement cannot eliminate certain duties or authorize conduct involving bad faith, willful or intentional misconduct, or knowing violations of law.

What Should You Review in a Franchise Agreement?

A prospective franchisee should approach a franchise agreement differently.

Important provisions may include:

  • Initial franchise fees
  • Continuing royalties
  • Advertising fees
  • Territory
  • Required suppliers
  • Equipment requirements
  • Training
  • Operating standards
  • Reporting requirements
  • Insurance
  • Renewal rights
  • Transfer restrictions
  • Default provisions
  • Cure periods
  • Termination rights
  • Post termination restrictions
  • Personal guarantees
  • Noncompetition provisions
  • Dispute resolution

The Franchise Disclosure Document should also be reviewed alongside the franchise agreement. The FTC advises prospective franchisees to review all 23 numbered items in the FDD and ask for clarification about information they do not understand before investing.

How Florida Law Applies to These Agreements

Florida law treats operating agreements and franchise agreements differently because they govern different relationships.

For LLCs, Florida Statutes section 605.0105 provides that an operating agreement governs relationships among members, between members and the LLC, the rights and duties of managers, the company’s activities and affairs, and procedures for amending the agreement. Florida law gives LLC members substantial flexibility to establish their own internal rules, subject to statutory limitations.

Franchise relationships involve both state and federal requirements. The FTC Franchise Rule requires covered franchisors to provide a Franchise Disclosure Document containing 23 specified categories of information, generally at least 14 days before a prospective franchisee signs the agreement or makes a required payment. Florida law also addresses certain franchise related misrepresentations and provides remedies under section 817.416.

The practical distinction remains simple: the operating agreement governs the LLC’s internal affairs, while the franchise agreement governs the relationship between the franchisor and franchisee. A Florida business operating as a franchise may therefore need to comply with both.

Pay Particular Attention to the Exit Provisions

Business owners often focus on how they will open the business. The documents also need to address what happens when the relationship changes.

An operating agreement may determine what happens when an LLC member wants to leave, dies, becomes incapacitated, or wants to sell an ownership interest.

A franchise agreement may establish what happens when the franchisee wants to sell the franchise, fails to meet contractual requirements, seeks renewal, or faces termination.

These provisions can have substantial practical consequences.

A franchise agreement may also contain obligations that continue after termination, particularly concerning trademarks, confidential information, unpaid amounts, proprietary materials, and other protected aspects of the franchisor’s business system.

The Burger King litigation demonstrates why post termination provisions can matter. After certain franchises were properly terminated, continued use of Burger King’s trademarks became a separate legal issue.

Franchise owner managing a business in Coral Springs Florida

A Word From Stuart G. Reinfeld

“An operating agreement and a franchise agreement may govern the same business, but they answer very different questions. The operating agreement establishes how the owners and the LLC will function together. The franchise agreement establishes the rights and obligations between the business and the franchisor.”

Questions to Ask Before Signing Either Agreement

Before forming an LLC, purchasing a franchise, or doing both, a business owner should be able to answer several basic questions.

Who owns the business?

  • The operating agreement should make the LLC’s ownership structure clear.

Who controls the business?

  • The LLC’s management provisions and the franchise agreement’s operating requirements can address different aspects of control.

Who gets paid, and how?

  • An operating agreement may govern distributions among LLC members, while a franchise agreement may establish royalties and other payments to the franchisor.

What happens if someone wants out?

  • The operating agreement may govern the transfer of an ownership interest, while the franchise agreement may impose additional requirements concerning a transfer of the franchise.

What happens if the relationship breaks down?

  • Default, dispute resolution, buyout, renewal, and termination provisions can become extremely important once the parties disagree.

Are there personal guarantees?

  • An individual owner can sometimes take on obligations separately from those of the business entity. The franchise agreement and related documents should be reviewed carefully to determine whether a personal guarantee is required and what it covers.

Operating Agreements and Franchise Agreements Are Not Substitutes

An operating agreement does not replace a franchise agreement, and a franchise agreement does not replace an LLC’s operating agreement.

They solve different legal and business problems.

For an LLC, the operating agreement helps establish the rules governing ownership, management, decision making, financial arrangements, transfers, disputes, and other internal affairs.

For a franchise, the franchise agreement establishes the contractual relationship with the franchisor and addresses the conditions under which the franchisee may operate under the franchisor’s brand and business system.

A business that uses an LLC to operate a franchise may therefore need to understand both documents and how they interact.

For business owners in Coral Springs, Broward County, and throughout South Florida, reviewing these agreements before signing them can help identify provisions that may affect ownership, management, financial obligations, transfers, disputes, and the future of the business.

If you are forming an LLC, purchasing a franchise, or entering into a business relationship governed by one of these agreements, an attorney can review the documents and explain how their provisions may apply to your particular circumstances.

5 Probate and Estate Planning Myths Florida Families Should Know

Posted on | by mP@

Probate-attorneys-in-Coral-Springs

Probate and estate planning are surrounded by assumptions that can cause families to make decisions based on incomplete or outdated information. Having a will does not necessarily eliminate probate. A surviving spouse does not automatically receive every asset. And Florida does not currently impose a state estate tax on people who died after December 31, 2004.

These issues can become particularly complicated when a family owns a Florida homestead, has children from different relationships, uses beneficiary designations, or has created a trust.

Here are five common probate and estate planning myths Florida families should understand.

Myth #1: “If I have a will, my family will not have to go through probate.”

A will determines how certain property should be distributed after death, but having a will does not, by itself, eliminate probate.

In Florida, a will generally must be admitted to probate before it can control the distribution of probate assets. Probate is the court-supervised process used to identify and gather probate assets, address valid debts and claims, and distribute the remaining assets to the appropriate beneficiaries. Florida Courts distinguishes probate assets from property that passes automatically through other forms of ownership or beneficiary arrangements.

The important distinction is between having a will and avoiding probate.

Some assets may pass outside probate because of how they are owned or because a beneficiary has been designated. Examples can include certain jointly owned property, life insurance policies, retirement accounts, payable-on-death accounts, and assets held in a properly funded trust.

A will can still be an important part of an estate plan even when other assets pass outside probate. It can designate a personal representative, identify beneficiaries for probate assets, and address property or circumstances that other arrangements do not cover.

Attorney Perspective — Alan J. Reinfeld

“A revocable trust is not simply a document you sign and put away. It is a way of organizing your property so that someone you trust can manage it if you become unable to do so and carry out your instructions after your death.”

The practical question is therefore not simply whether you have a will. It is how your assets are owned and how the different parts of your estate plan work together.

Why this distinction matters

A family can have a perfectly valid will and still have to open a probate proceeding. Conversely, some property can pass outside probate even when there is no will.

That is why phrases such as “I have a will, so I don’t need probate” can be misleading.

Myth #2: “My spouse automatically gets everything when I die.”

A surviving spouse has significant rights under Florida law, but the outcome is not always as simple as “everything goes to my spouse.”

If someone dies without a valid will, Florida’s intestacy laws determine who receives property that passes through intestacy. The surviving spouse’s share depends on the family’s circumstances, including whether the decedent has descendants and whether those descendants are also descendants of the surviving spouse.

Other factors can matter as well.

How an asset is titled matters

An asset owned jointly with rights of survivorship may pass automatically to the surviving owner rather than through probate. Similarly, an insurance policy or retirement account with a valid beneficiary designation may pass directly to the designated beneficiary.

That means the instructions in a will are not necessarily the only instructions controlling what happens to someone’s property after death.

Florida homestead has special rules

Florida’s homestead protections make this issue particularly important for homeowners.

The Florida Supreme Court has repeatedly recognized that constitutional homestead rules can restrict how a person’s homestead may be devised after death. In Estate of Murphy, the court examined whether a surviving spouse or descendant had rights in a Florida homestead despite the language of the decedent’s will.

In another significant case, In re Estate of Finch, the Florida Supreme Court addressed a will that attempted to give a homestead to one person while the decedent was survived by a spouse and descendants. The court recognized that Florida’s constitutional and statutory homestead restrictions can override an attempted devise that does not comply with those rules.

These cases illustrate why Florida homestead should not be treated like an ordinary piece of property.

Florida Supreme Court — Estate of Murphy

“A will speaks as of the time of the death of the testator.”

The point is not that every Florida estate will produce the same result. It is that the circumstances existing at death, rather than assumptions made years earlier, can determine how property passes.

Beneficiary designations can also change the outcome

Life insurance, retirement accounts, investment accounts, and other assets may pass according to beneficiary designations rather than according to a will.

A beneficiary designation that has not been reviewed after a divorce, remarriage, death, or other major family change can therefore create consequences that the person who originally completed the form never intended.

Attorney Perspective — Devin P. Tison

“The best estate plan is one that makes the owner’s intentions clear before the family is forced to interpret them under pressure. A trust can provide that structure, but the document and the ownership of the assets need to work together.”

For these reasons, an estate plan should be reviewed as a whole rather than assuming that a spouse will automatically receive everything.

Myth #3: “Probate means the government takes your property.”

Probate does not mean that the government takes a deceased person’s property.

Probate is a legal process for administering assets that are subject to probate. It can involve identifying assets, determining who is entitled to receive them, addressing creditor claims and expenses, and distributing the remaining property according to the will or, if there is no valid will, Florida’s intestacy laws.

If someone dies without a will, that does not mean the State of Florida automatically becomes the beneficiary.

Florida law establishes which relatives inherit when someone dies intestate. Property does not simply become state property because the deceased person did not leave a will.

Probate can still be complicated

The opposite myth is also worth avoiding: probate is not necessarily insignificant.

Florida recognizes different forms of estate administration, including formal administration and summary administration. There is also a limited procedure for disposition of certain personal property without administration. Which procedure applies depends on the circumstances of the estate.

Probate can involve court filings, creditor procedures, notices, inventories, tax issues, real estate, and disputes between beneficiaries or other interested parties.

The process exists partly because someone needs legal authority to deal with property and obligations after a person’s death.

The Florida Supreme Court’s decision in McKean v. Warburton provides a useful illustration of how apparently simple inheritance questions can become legal disputes. The case concerned the treatment of a Florida homestead and the relationship between specific gifts, residuary beneficiaries, and homestead law.

Florida Supreme Court — McKean v. Warburton

The court explained that a person generally may dispose of property by will “so long as that person’s intent is not contrary to any principle of law or public policy.”

That qualification matters.

A person’s wishes are important, but a will does not operate independently of Florida’s statutes and constitutional protections.

The better question is not whether probate means losing your property. It is whether the assets that make up an estate will require probate and, if they do, what administration process applies.

Myth #4: “Estate planning is only for wealthy people.”

Estate planning is not limited to people with large estates.

An estate plan can address much more than the transfer of substantial wealth. Depending on a person’s circumstances, it may address:

  • Who receives property after death
  • Who manages assets during incapacity
  • Who serves as personal representative
  • Whether a trust is appropriate
  • Beneficiary designations
  • Real estate and other significant property
  • Provisions for children or other dependents
  • Financial and healthcare decision-making
  • The treatment of a family business or other complicated assets

The appropriate plan depends on the person’s family, assets, wishes, and circumstances.

A person with a relatively modest estate may still want to make clear decisions about who should receive property, who should manage the estate, and who should make financial or medical decisions if that person becomes unable to do so.

Estate planning is therefore less about reaching a particular dollar amount and more about making arrangements before someone else has to make decisions under difficult circumstances.

Estate planning also involves incapacity

One reason people use revocable living trusts is that they can provide a structure for managing trust property during the creator’s lifetime and after incapacity.

Florida’s Supreme Court addressed the nature of a revocable trust in Florida National Bank of Palm Beach County v. Genova. The court described the essential feature of a revocable trust as the settlor’s retained ability to revoke the trust and regain control of the trust property.

That case is a useful reminder that a revocable trust is fundamentally about control and management of property, not simply what happens after death.

Estate planning is also not something that should necessarily be created once and then forgotten.

Marriage, divorce, the birth or adoption of a child, the death of a beneficiary, a major change in assets, moving to Florida, or creating a trust can all justify reviewing an existing plan.

Attorney Perspective — Alan J. Reinfeld

“One of the most important parts of creating a trust happens after the document is signed. If an asset is supposed to be managed through the trust, the ownership needs to be properly coordinated with the trust. An unfunded trust may not accomplish what the person who created it expected.”

That principle applies more broadly to estate planning: the documents and the way property is actually owned need to agree with each other.

Florida probate and estate planning documents representing common probate myths

Myth #5: “Florida has an estate tax, so my family will lose part of the inheritance.”

Florida does not currently impose a state estate tax on people who died after December 31, 2004.

The Florida Department of Revenue states that a federal change eliminated Florida’s estate tax for deaths after that date. Beginning July 1, 2023, personal representatives also stopped being required to file the former Florida estate-tax affidavits for estates of people who died after December 31, 2004.

That does not mean estate-tax planning is irrelevant in every situation.

Federal estate tax is different

Federal estate tax is separate from Florida’s state tax system.

For people who die in 2026, the federal basic estate-tax exclusion is $15 million per individual. Whether a particular estate has a federal filing or tax obligation depends on the applicable federal rules and the circumstances of the estate.

For many families, however, the most important estate-planning questions may have little to do with federal estate tax.

The ownership of assets, beneficiary designations, probate, incapacity planning, family circumstances, Florida homestead rules, and the appropriate use of wills or trusts can be much more immediately relevant.

Tax rules can also change, which is another reason older estate-planning articles and documents should not be treated as permanently current.

What These Probate Myths Have in Common

Most probate and estate-planning problems do not come from a single document being completely absent.

They often arise because different parts of an estate plan do not work together.

A person may have a will but outdated beneficiary designations. Someone may establish a trust without properly transferring the intended assets into it. A married couple may own property in a way they have never reviewed. Or a family may assume that Florida’s intestacy rules will produce the result they would have chosen themselves.

The way an asset is titled can determine whether it becomes part of the probate estate. Beneficiary designations can determine who receives other assets. A trust can change the way property is managed and distributed. Florida homestead law can impose restrictions that do not apply to other property.

This is why estate planning is ultimately about more than signing documents.

The documents, ownership of property, beneficiary designations, and the family’s actual circumstances need to be coordinated.

When Should You Review an Estate Plan?

There is no universal schedule that applies to every person, but certain events are obvious reasons to revisit an existing plan.

Consider reviewing your estate plan after:

  • Marriage or divorce
  • The birth or adoption of a child
  • The death of a beneficiary or personal representative
  • A major change in your assets
  • Purchasing or selling significant real estate
  • Moving to Florida from another state
  • Creating or changing a trust
  • Changes to life insurance or retirement beneficiaries
  • A significant change in your family circumstances
  • Changes in tax or estate-planning law

A review does not necessarily mean that every document needs to be replaced. It means checking whether the existing plan still reflects your circumstances and whether the different components still work together.

Florida attorney discussing probate and estate planning with a family

Frequently Asked Questions About Probate and Estate Planning in Florida

Does having a will avoid probate in Florida?

  • No. A will generally directs the distribution of probate assets, but it does not itself eliminate the probate process. Some assets may pass outside probate because of joint ownership, beneficiary designations, or a properly funded trust.

Does everything automatically go to my spouse if I die without a will?

  • No. Florida’s intestacy laws determine the surviving spouse’s share based on the family’s circumstances, including whether the decedent has descendants and whether those descendants are also descendants of the surviving spouse. Florida homestead rules can create additional restrictions.

Does Florida have an inheritance tax?

  • Florida does not currently impose a state inheritance tax on beneficiaries receiving an inheritance. Florida also does not currently impose a state estate tax on deaths occurring after December 31, 2004. Federal estate-tax rules are separate.

How much can someone leave before federal estate tax applies in 2026?

  • For a person who dies in 2026, the federal basic estate-tax exclusion is $15 million. Whether an estate has a federal filing or tax obligation depends on the applicable federal rules and the circumstances of the estate.

Does a trust eliminate probate?

  • A properly funded revocable trust can allow assets held by the trust to pass without the ordinary probate process. Assets that were never transferred to the trust may still require probate, and trust administration can still involve significant legal and financial responsibilities.

Do I need an estate plan if I do not have a lot of money?

  • An estate plan can still be useful even when an estate is relatively modest. Wills, beneficiary designations, powers of attorney, healthcare documents, and trusts can address different issues during incapacity and after death. The appropriate combination depends on the person’s circumstances.

Planning for Probate and Estate Administration in South Florida

Probate and estate planning involve more than deciding who should receive property.

The way assets are titled, the existence of beneficiary designations, family relationships, Florida homestead rules, debts, and the presence of a will or trust can all affect what happens after someone dies.

Reinfeld & Cabrera, P.A. assists clients with probate, estate planning, trusts, and related matters in Coral Springs, Fort Lauderdale, Broward County, and throughout South Florida.

If you are reviewing an existing estate plan or dealing with the estate of someone who has died, an attorney can help identify which assets are subject to probate, what legal procedures apply, and whether the existing plan still reflects your intentions.

What Happens to Your Estate Plan When Your Spouse Dies First?

Posted on | by mP@
Estate planning attorney reviewing legal documents and financial accounts for a client in Coral Springs, Broward County.

When a married couple creates an estate plan, most of the attention naturally goes toward what happens after both spouses have died. But there is another moment that can be just as important: the death of the first spouse.

That event can change ownership of assets, activate provisions in a trust, affect beneficiary designations, create tax filing opportunities, and alter the plan the surviving spouse will eventually leave behind.

For families in Coral Springs and throughout Broward County, this is one reason an estate plan should be reviewed after a spouse dies. The documents may still be valid, but the circumstances they were designed to address have changed.

And that can make a surprisingly big difference under Florida law.

The First Death Is a Turning Point, Not the End of the Plan

An estate plan for a married couple is usually built around two different deaths.

The first death determines what happens to the deceased spouse’s property and what the surviving spouse receives or controls. The second death determines what ultimately passes to children, other beneficiaries, charities, or other intended recipients.

Those two events are connected.

For example, a couple may have arranged their assets so that the surviving spouse has financial security while certain property remains subject to a particular trust structure. Another couple may have arranged for most assets to pass directly to the surviving spouse.

Both plans can be legally sound. But they can produce very different results later.

The important question after the first death is therefore not simply, “Who inherited?”

It is:

“What did the first death activate, and what does the surviving spouse’s estate now look like?”

What Happens to the Assets After the First Spouse Dies?

The answer depends on how each asset was owned and how the estate plan directed it.

Some property may pass under a will. Some may pass according to a trust. Other assets may pass through beneficiary designations or forms of joint ownership.

This is why looking only at the will is rarely enough.

The surviving spouse and the estate’s attorney may need to review:

  • Real estate ownership
  • Bank and investment accounts
  • Retirement accounts
  • Life insurance
  • Business interests
  • Jointly owned property
  • Beneficiary designations
  • Trust assets
  • Debts and obligations
  • Prior gifts
  • Property that may be included in the deceased spouse’s taxable estate

The practical problem is that these pieces do not necessarily follow the same path.

A beneficiary designation can control an account without sending it through the will. A jointly owned asset can operate differently from separately owned property. A trust can contain instructions that become relevant immediately after death.

This is one reason the death of a spouse should trigger a full review of the estate plan in South Florida, rather than simply checking off the probate process and moving on.

The Estate Tax Question Begins With the First Death

Estate tax planning can become especially important when a married couple has substantial assets.

For deaths occurring in 2026, the federal basic exclusion amount is $15 million. (It is worth noting that Florida does not currently levy a state level estate tax). An estate generally must file Form 706 when the applicable federal filing threshold is exceeded. But there is another important reason to file: the executor can use Form 706 to elect portability of the deceased spouse’s unused exclusion for the surviving spouse.

That second point is easy to overlook.

Suppose one spouse dies with an estate substantially below the federal exclusion amount. It might appear that there is no reason to think about an estate tax return because no federal estate tax is due.

That conclusion can be premature.

A properly filed estate tax return can allow the surviving spouse to receive the deceased spouse’s deceased spousal unused exclusion amount, commonly called DSUE. The surviving spouse may then be able to use that amount against certain later taxable transfers during life or at death.

In other words, “No estate tax is due” and “there is nothing worth filing” are not necessarily the same thing.

What Is Portability?

Portability allows a deceased spouse’s unused federal estate tax exclusion to be transferred to the surviving spouse.

The surviving spouse does not receive the unused exclusion automatically. The deceased spouse’s estate must make the portability election through a properly prepared Form 706.

For a 2026 death, the normal Form 706 deadline is nine months after the date of death, with a possible six month extension. Certain estates that were not otherwise required to file can also qualify for a simplified procedure allowing a late portability election within five years of the decedent’s death.

That deadline is one of the reasons the issue deserves attention soon after the first spouse dies.

The family may be dealing with grief, probate, property transfers, insurance claims, financial accounts, and a long list of practical problems. The tax filing may feel like something that can wait.

Sometimes it cannot.

Why the Surviving Spouse’s Future Estate Matters

Imagine a married couple with substantial assets.

The first spouse dies. Most of the property passes to the surviving spouse, who continues living in the family home, maintains the investment portfolio, and eventually receives additional assets.

Years later, the surviving spouse dies.

At that point, the estate is measured again.

The surviving spouse’s estate may look very different from the estate that existed at the first death. Investments may have appreciated. Real estate may have increased substantially in value. Retirement accounts may have changed. The surviving spouse may have received additional property or made significant gifts.

That means the planning opportunity at the first death can have consequences years later.

Stuart Reinfeld explains the practical issue this way:

“The surviving spouse should not assume that the estate plan is finished simply because the first estate was administered. The first death can change the legal and financial circumstances that the original plan was built around.”

That review does not necessarily mean rewriting everything.

It means determining whether the structure still accomplishes what the couple originally intended.

Does a Trust Automatically Save Estate Taxes?

No.

This is an important distinction because older estate planning materials sometimes make trusts sound like tax saving machines.

A revocable living trust can be an important part of an estate plan, but simply placing assets in a revocable trust does not automatically eliminate federal estate tax.

The tax consequences depend on the actual structure, ownership, applicable exclusions, elections, deductions, beneficiary arrangements, and the circumstances surrounding the transfer.

The more useful question is therefore:

How does the trust operate after the first spouse dies, and what does that structure accomplish?

In some estate plans, trust provisions may help determine who controls property, who benefits from it, and how it is treated after the first death. In others, assets may pass directly to the surviving spouse.

The answer depends on the plan.

That is why copying a trust structure from another family is a particularly bad form of estate planning.

Conceptual illustration showing wills, trusts, and beneficiary designations working together as an interlocking system under Florida law.

When the First Death Changes the Tax Strategy

A married couple may have several potential ways to structure property at the first death.

One approach may leave property directly to the surviving spouse. The federal marital deduction can generally allow qualifying property passing to a surviving U.S. citizen spouse to be deducted from the deceased spouse’s gross estate.

That can defer estate tax rather than necessarily eliminate it.

Other arrangements can involve trusts or other structures designed to address control, beneficiary protection, tax planning, or a combination of these concerns.

The appropriate structure depends on the family’s circumstances.

For example, a couple with a relatively straightforward estate may have different concerns from a couple who owns several properties, a closely held business, significant investments, or substantial assets expected to appreciate.

Alan Reinfeld explains the practical point this way:

“The first spouse’s death is often the moment when the surviving spouse’s estate plan needs to be reconsidered. The plan was created for two people. After one dies, it is a plan for one.”

That is especially important when the family’s wealth is likely to change substantially over time.

Case Study: When “Everything Went to My Spouse” Was Not the Whole Story

Consider a hypothetical couple living in Coral Springs, Michael and Laura.

They own their home, investment accounts, several retirement accounts, and other assets with a combined value of approximately $10 million.

Michael dies first.

The immediate result appears simple. Laura receives the property intended for her, the family home remains in her hands, and there is no federal estate tax bill because the estate is below the 2026 $15 million basic exclusion amount.

The family assumes the tax issue is finished.

But Laura’s attorney asks a different question:

Was portability elected?

Michael’s estate may have had unused federal exclusion available for Laura. If the executor makes the appropriate election, that unused amount may become available to Laura for later taxable transfers.

Now consider what happens over the next decade.

Laura’s investments appreciate. She sells one property and reinvests the proceeds. The family home increases substantially in value. She also receives additional assets.

By the time Laura dies, her estate is considerably larger than the estate Michael left behind.

The first death did not produce an immediate estate tax problem. But decisions made at that time could still affect the tax position of Laura’s eventual estate.

The lesson is not that every couple needs a complicated trust structure.

The lesson is that the first death can create decisions whose consequences will not become visible until years later.

What Should the Surviving Spouse Review?

After the first spouse dies, a surviving spouse should consider reviewing at least the following:

  1. How each asset passed: Determine which assets passed through a will, trust, beneficiary designation, joint ownership, or another mechanism.
  2. Whether an estate tax return should be filed: Even when no estate tax is immediately owed, filing may be important if the estate wants to elect portability.
  3. Whether portability was elected: If the surviving spouse may benefit from the deceased spouse’s unused exclusion, confirm whether the election was made and whether the return was properly prepared.
  4. The surviving spouse’s new asset picture: The surviving spouse may now own or control assets that were previously divided between two estates.
  5. Future appreciation: An asset’s value today is not necessarily the value that will matter at the surviving spouse’s death.
  6. Beneficiary designations: Retirement accounts, insurance policies, and other accounts should be reviewed to determine whether their beneficiary designations still reflect the family’s intentions.
  7. Trust provisions: If a trust was involved, determine what happened to the trust at the first death and what rights and obligations now apply.
  8. The surviving spouse’s own estate plan: The surviving spouse is now the person whose eventual estate plan will determine what happens to the remaining assets.

That last step is often overlooked.

The estate plan should evolve because the family has changed.

What If the Surviving Spouse Remarries?

Remarriage can introduce another layer of planning.

Federal portability rules contain a last deceased spouse limitation. Generally, a surviving spouse’s DSUE amount is tied to the spouse who was most recently deceased at the relevant time. The IRS rules also address how remarriage can affect the use of a previously received DSUE amount.

That means remarriage should prompt another estate planning review.

The same is true if the surviving spouse:

  • Has additional children
  • Changes beneficiaries
  • Acquires or sells major assets
  • Starts or sells a business
  • Makes significant gifts
  • Moves assets into different ownership structures
  • Experiences a major change in financial circumstances

Estate plans have a bad habit of becoming outdated quietly.

What If Nobody Thought About Portability?

There is a useful safety net, but it should not become the planning strategy.

For certain estates that were not otherwise required to file Form 706, IRS procedures provide a simplified method for making a late portability election. Under Revenue Procedure 2022-32, qualifying estates can generally use the procedure by filing a complete Form 706 on or before the fifth anniversary of the decedent’s death.

That does not mean families should wait.

Eligibility requirements matter, and estates that were already required to file a return can face different rules concerning the deadline.

The practical lesson is simple: if the first spouse died without a portability election being considered, ask about it rather than assuming the opportunity is gone.

The First Death Should Trigger a Review, Not a Filing Frenzy

Estate administration can involve a remarkable amount of paperwork.

That does not mean every surviving spouse needs to rebuild an entire estate plan immediately.

The better approach is to identify what changed first.

What assets moved? Have assets remained in trust? What tax elections are available? Do deadlines apply? What does the surviving spouse now own? What will eventually pass from the surviving spouse’s estate?

Once those questions are answered, the family can determine whether the existing plan still makes sense.

For families in Coral Springs, Broward County, and throughout South Florida, an attorney can help review the documents, asset ownership, tax filings, and beneficiary arrangements together rather than treating each document as an isolated problem.

Because the first spouse’s death may be the point where the estate plan changes from a two person plan into a one person plan.

And that is a pretty important change to leave sitting in a filing cabinet.

Surviving spouse reviewing financial and estate planning documents with professional guidance in Broward County.

Frequently Asked Questions

Could a spouse automatically receive the deceased spouse’s unused estate tax exemption?

  • No. Portability generally requires the deceased spouse’s estate to make an election by filing Form 706. The surviving spouse may then be able to use the deceased spouse’s unused exclusion amount against certain later taxable transfers.

Does an estate tax return have to be filed if no estate tax is owed?

  • Not necessarily. For a 2026 death, the normal federal filing threshold is $15 million for a U.S. citizen or resident decedent, subject to applicable rules. However, Form 706 may also be filed to elect portability, even when the estate is below that threshold.

Does Florida have a state level estate tax when a spouse dies?

  • No. Florida does not currently impose a state estate tax or inheritance tax. Estate tax planning for families in Coral Springs and Broward County focuses entirely on federal estate tax rules, portability elections, and asset management structures.

How long does a family have to elect portability?

  • The normal federal deadline is nine months after death, with a possible six month extension. Certain estates that were not otherwise required to file may qualify for a simplified late election procedure within five years of the decedent’s death.

Does a living trust automatically reduce estate taxes?

  • No. A revocable living trust does not automatically eliminate federal estate tax. The tax consequences depend on how the assets, trust provisions, elections, deductions, and other parts of the estate plan interact.

Should the surviving spouse change the estate plan immediately?

  • Not necessarily. The first priority is understanding what changed after the death and identifying any deadlines or tax elections. Once the surviving spouse’s new financial and legal position is clear, the estate plan can be reviewed and changed where appropriate.

What happens to the surviving spouse’s estate when that spouse later dies?

  • The surviving spouse’s estate is evaluated based on the assets and applicable tax rules at that later death. The value of assets may have changed significantly since the first spouse died, which is one reason planning decisions made after the first death can have long term consequences.

Can a surviving spouse lose the benefit of a deceased spouse’s unused exclusion?

  • The rules are technical. Portability, later taxable transfers, and the identity of the surviving spouse’s last deceased spouse can all matter. Remarriage can also affect the use of a previously received DSUE amount.

Schedule a Consultation with Our Coral Springs Estate Planning Attorneys

If you are navigating the administration of an estate after the death of a spouse in Coral Springs, Broward County, or anywhere in South Florida, you do not have to sort through asset titles, tax elections, and trust provisions alone.

Alan Reinfeld and Stuart Reinfeld help families evaluate how a first death impacts the surviving spouse’s legal and financial reality. Contact our office today to schedule a confidential review of your estate plan and ensure every piece of your structure is aligned for the future.