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and estate planning are surrounded by assumptions that can cause families to make decisions based on incomplete or outdated information.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.
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.
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.