Planning for the Future: Guide to Understanding Wills, Trusts, and Legal Planning -July 24, 2025

Florida Rural Legal Services Non-Profit Law Firm

Updated June 2025

Planning for the Future: Guide to Understanding Wills, Trusts, and Legal Planning for End-of-Life Decisions FRLS.org 1-888-582-3410

Florida Rural Legal Services, Inc. (FRLS) is a non-profit law firm that provides free civil legal aid to eligible individuals, families, and vulnerable communities across 13 Florida counties, as well as to farmworkers statewide.

Legal Services Funded in part

by Grants Through:

Table of Contents Introduction to FRLS and Disclaimer

1

Introduction to Estate Planning

2

Guardianship

3

Probate of Your Estate

3

Wills

6

Trusts

12

Durable Powers of Attorney

12

Declaration of Healthcare Surrogates

13

Living Wills

16

Documents for Minors

18

Introduction Disclaimer: This pamphlet is not intended to take the place of legal advice. It is designed to provide you with basic information regarding wills, trusts, durable power of attorney, advance directives, probate and guardianship in Florida.

Introduction to FRLS Florida Rural Legal Services, Inc. (FRLS) is a non-profit law firm that provides free civil legal aid to eligible individuals, families, and vulnerable communities across 13 Florida counties, as well as to farmworkers statewide.

FRLS office locations: Belle Glade Fort Myers Fort Pierce Immokalee Lakeland Riviera Beach Our offices serve the following counties: Lee, Polk, Palm Beach, St. Lucie, Martin, Okeechobee, Indian River, Highlands, Hardee, Hendry, Charlotte, Desoto, and Glades.

You can contact us on our Intake Hotline at 1-888-5823410. You can also apply online on our website at www.FRLS.org.

1

Introduction to Estate Planning Everyone over the age of 18 or legally emancipated minors should have a written plan for if they are no longer able to make decisions for themselves or their dependents.

This written plan is called an "estate plan" and typical consists of documents like last wills and testaments, durable powers of attorney, designations of healthcare surrogates and living wills.

Sometimes, the term "advance directive" is also used to refer to an estate plan, but technically, only documents related to healthcare decision-making are advance directives.

Someone must have "capacity" to set up an estate plan, meaning they must understand: The nature and extent of the transaction, Their relationship to those who will benefit from the transaction, and The practical effect of the transaction.

Why Estate Plan? To Avoid Guardianship and Probate!

If someone does not have an estate plan, then their family and friends must rely on the laws of Florida and its courts to make these decisions. The resulting court processes, like "guardianship" or "probate," are often lengthy and time-consuming.

2

Guardianship Someone who is still living and does not have capacity to make decisions for themselves or their dependents may be subjected to a guardianship case.

In such a case, that person's family and friends ask the court to take away the individual’s rights to make these decisions and assign them to another person, who is called the "guardian.”

This is an extreme remedy, and a guardian is only appointed after the court has determined that there is no less restrictive alternative.

Probate of Your Estate What is Probate?

When someone dies without making an estate plan that distributes their belongings, their family and friends may ask the court to distribute the property according to the laws of Florida.

This type of court case is called a probate case, and the laws applied when there is no estate plan exclude everyone except surviving spouses and those related to the deceased by blood or adoption.

3

Probate of Your Estate continued...

Not having an estate plan can have unintended consequences such as costing someone's family and friends more time and money, excluding loved ones or included estranged family members.

To avoid these costly court proceedings, everyone over the age of 18 or emancipated minors with capacity should have the following documents: Last Will and Testament (and/or Trust) Durable Power of Attorney Declaration of Healthcare Surrogate Living Will If they have minor children, then they should also consider obtaining: Declaration of Healthcare Surrogate for a Minor Declaration of Preneed Guardian for a Minor What are some examples of probate assets?

Probate Assets

Non-Probate Assets

Bank Account in your name only.

Bank Account held in trust for another.

Bank Account held jointly with rights of survivorship.

Real Estate titled in your name only.

Life insurance policy or individual retirement account policy payable to a specific beneficiary.

4

Probate of Your Estate continued...

Who supervises the administration of your probate estate?

Your probate estate will be supervised by a Circuit Court Judge. The Circuit Judge will appoint a personal representative over your affairs and issue letters of administration. The letters of administration give the personal representative power or authority to act.

What is a Personal Representative?

A personal representative is an individual appointed by the Court to be in charge of the administration of your estate. The personal representative may have authority to do any of the following things: Identify, gather, and protect your assets Publish notice to creditors in a local newspaper Serve interested persons with a Notice of Administration regarding the estate Pay valid claims, debts, or administrative expenses Distribute statutory assets to the surviving spouse or family Distribute assets to beneficiaries Who can serve as a Personal Representative?

A bank or trust company under certain restrictions An individual who is a resident of Florida An individual who is a spouse, sibling, parent, child, or certain other close relative

5

Probate of Your Estate continued...

Note: The Court will give preference to the person designated to serve as a personal representative under a valid will. If there is no will, the Court will give preference to the surviving spouse, or an individual selected by a majority of the heirs. Non-relatives who do not reside in Florida cannot be your personal representative.

Wills What is a Will?

A "will," or more formally a "last will and testament," is a legal document where someone says how they would like their things to be distributed after their death.

A will names a "personal representative," also known as the "executor" of the estate, who manages the estate and makes distribution with the approval and supervision of the court.

To be valid, a will must be signed in the presence of two witnesses and a notary.

If a person only has a will, then their estate may still need to go through probate, but the court will apply their distribution plan instead of Florida's default plan.

However, someone cannot "disinherit," or leave nothing to, their surviving spouse or minor children.

6

Wills continued...

What does Florida Require for a Will to be valid?

Maker of the will must be at least 18 years old, Maker of the will must be of sound mind Must be written Must be signed and witnessed in a special manner as required under Florida law Must be filed and proved in a probate court after your death in order to be effective Who may make a Will?

Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.

Why is it a good idea to make a Will?

If you die without leaving a will, your property will be distributed according to a formula that has been created by the State with no allowances for relatives with specific needs, your non-familial relationships, or your desires.

The court will appoint someone to handle your estate and the costs will probably be greater than if you leave a will.

If I have a Will, can I leave my property any way I want?

Almost. If you are married, you cannot exclude your spouse unless they agree in an ante or post nuptial agreement. If you leave nothing to your spouse, they can challenge the will and receive 30% of your estate. There are also restrictions on how you can leave homestead property.

7

Wills continued...

Do I have to leave something to each of my children?

No. A parent has the right to disinherit their adult children. However, restrictions may apply to the how you leave homestead property if you have minor children.

If I make a Will and then change my mind, can I cross something out and rewrite it?

No. If you do so you may invalidate the entire will. To change the terms, you must either execute an entire new will or a codicil with the same legal formalities as a will.

For how long is my Will good?

Your will is good until it is changed or revoked. Changes in circumstances such as tax laws, deaths, marriages, births, divorce or size of your estate may raise questions as to the adequacy of your will and should be considered to determine if it should be changed. If you move to another state, you should have it reviewed to see if it is valid in that state.

Will it cost more money when I die if I leave a Will?

No. In fact it will probably cost less. If you own any real property (land or a house) individually and do not leave a will, the court will first determine your heirs (who the law says should legally inherit from you). Whether you leave a will or not does not affect whether or not your estate must be probated.

8

Wills continued...

My wife and I own everything jointly, so why should we have Wills?

Owning property jointly may simplify matters when the first owner dies - but what if you die together or within a short period of time? If this happens, joint ownership solves no title problems and the law will determine who gets your property.

What if I write a Will now while I am a widow and then I marry again next year?

When you remarry, consult your lawyer about possible changes. Your wishes may not be carried out without proper changes to your will.

I am now a Florida resident, but I have a Will I executed in another state. Do I have to have a new Will?

You should have the old will reviewed by a Florida lawyer to see if a new will is necessary. It may be void.

Can I write my own Will?

Yes. No particular form of words is necessary to the validity of a will if it is executed with the formalities required by Florida law. An attorney can make sure the will is properly signed and witnessed.

Where should I keep my Will?

A will should be kept in a conspicuous place so that it can be easily located if anything happens to you. A copy should also be given to a trusted friend or family member.

9

Wills continued...

If I have a Will, is there anything else I should do to prepare for my death?

Yes. You should leave a list of your loved ones, your assets, your liabilities, etc. to help the survivors handle your affairs. The following is a list of the information we suggest you leave: 1.List of family names with addresses, home and work phone numbers.

2.List of names, addresses, home and work phone numbers of any beneficiaries under your will.

3.Name, address and phone number of your place of worship and the clergy member you want contacted.

4.Name, address and phone number of your lawyer.

5.Name, address and phone number of your employer.

6.If you have any funeral arrangements, leave a description of the arrangements along with names, addresses and phone numbers of the vendors involved.

7.Names and addresses of all your banks with a notation of what type of account and the account number. Give the location of any safety deposit box with a brief description of what is in the box.

8.Life insurance information including name and address of the insurance company and the policy number.

10

Wills continued...

9. List of assets including where they are held. For example, if you have a Certificate of Deposit, list the amount of the Certificate, where it is and any appropriate account number.

10. List of bills due every month. For example, if you have a mortgage, put down how much you pay, when, and where you send the payment.

Do I have to include my life insurance policy in my Will?

No. Life insurance is a type of asset that does not affect the distribution of property in a will. Be sure that your choice of a beneficiary is up to date.

When should I change my Will?

It is recommended that you revise your will every time you experience a major life-changing event like the birth or adoption of a child, death of a spouse, marriage, or divorce.

11

Trusts What is a Trust?

A "trust" is an agreement created to manage a person's property - including but not limited to real property and financial accounts - during their lifetime and/or after their death.

Like a will, a trust must be signed in the presence of two witnesses and a notary.

There are many kinds of trusts, but generally, property that a grantor gives to the trust does not go through probate. Instead, that property is distributed according to the rules of the trust, which are set by the grantor.

Who sets up a Trust?

The person who sets up a trust is called the "grantor" or "settlor" of the trust. The person who manages the trust and its property is called the "trustee." The trust agreement is fundamentally an agreement between the grantor and the trustee.

Durable Powers of Attorney What is a Durable Power of Attorney?

A "durable power of attorney" is a legal document where someone nominates someone else to make legal and financial decisions for them if they cannot.

12

Durable Powers of Attorney continued...

The person nominated is called the "power of attorney," the "attorney-in-fact," or simply, the "agent."

A durable power of attorney is ‘durable’ because if the person who made the power of attorney becomes incapacitated, the agent still has authority to act for them.

The durable power of attorney document must be signed in the presence of two witnesses and a notary.

Declarations of Healthcare Surrogates What is a Declaration of a Healthcare Surrogate?

A "declaration of healthcare surrogate" is a legal document where someone nominates someone else to make medical decisions for them and to receive their medical information if they are not able.

Sometimes, a declaration of healthcare surrogate is called a "medical power of attorney," but it is not preferred since it could easily be confused with a durable power of attorney.

The declaration of healthcare surrogate document must be signed in the presence of two witnesses.

13

Declarations of Healthcare Surrogates continued...

What is a Healthcare Surrogate?

A healthcare surrogate is an individual chosen by you to make all healthcare related decisions in the event of your incapacity. If you become incapacitated, your designated healthcare surrogate may consult and make decisions regarding your health. The healthcare surrogate will have authority to give informed consent to your physician and make decisions in your place.

How can I designate an individual to serve as my Healthcare Surrogate?

You must designate your healthcare surrogate through a written declaration. The written declaration must be signed by you in the presence of two witnesses.

Please note that at least one of the witnesses cannot be your spouse or relative. Most importantly, the individual that you designate as your healthcare surrogate may not sign the written declaration as a witness.

14

Declarations of Healthcare Surrogates continued...

May I designate more than one person as my Healthcare Surrogate?

Yes. You may designate an individual to serve as an alternate surrogate. If the primary healthcare surrogate is unable or unwilling to perform his or her duties, the alternate surrogate may assume the responsibilities.

Does my designation of a Healthcare Surrogate expire at any time?

No. The designation of a healthcare surrogate will not expire.

However, you may revoke your designation at any time by executing a written document revoking your designation, destroying the original declaration, or by orally expressing your desire to revoke your designation of healthcare surrogate, if you decide to revoke your designation of healthcare surrogate, it is highly recommended that you let your physician or hospital know of your decision.

15

Living Wills What is a Living Will?

A "living will" is a legal document where someone says what kind of treatment they want - if any - in an end-oflife situation.

For example, a living will may say that someone does not want to remain on life support if they are in an irreversible coma.

A living will can also nominate someone to make these decisions if something unplanned happens. This document must be signed in the presence of two witnesses.

Who should receive a copy of my Living Will?

When you have executed a valid living will, it is recommended that you provide a copy of the living will to your physician and hospital to be placed in your medical records. You should also provide a copy of your living will to your spouse.

16

Living Wills continued...

When will my Living Will become effective?

In order for a living will to be effective in Florida, it must be signed by you in the presence of two witnesses.

Please note that at least one of the witnesses cannot be your spouse or relative.

If you are physically unable to sign the document, one of the witnesses can sign for you in your presence as long as you are directing the individual to act on your behalf.

Florida will recognize a living will that has been executed in another state, if the document was signed in compliance with the laws of that state, or in compliance with the laws of Florida.

Can I revoke my Living Will at any time?

Yes. You may revoke your living will at any time by executing a written document revoking your living will, destroying the original document, or by orally expressing your desire to revoke your living will.

If you decide to revoke your living will, it is highly recommended that you let your spouse, physician or hospital know of your decision.

17

Documents for Minors Declaration of Healthcare Surrogate for a Minor A "declaration of healthcare surrogate for a minor" is a document where a parent or guardian can nominate someone else to make healthcare decisions for their minor child. Both parents must agree on the surrogate.

The declaration of healthcare surrogate for minor must be signed by the parents or guardian in the presence of two witnesses.

Declaration of Preneed Guardian A "declaration of preneed guardian for a minor" is a document where the parents of a minor child nominate someone else to become guardian over their minor children if both parents die or become incapacitated.

The nominated guardian must still be approved by the court.

A declaration of preneed guardian does not need to be witnessed, but it does need to be signed and filed with the clerk of court where the minor resides.

18

Elder Law Services at FRLS Elder law focuses on addressing the unique legal needs of older adults and their families. FRLS's elder law services helps seniors plan for the future and secure their healthcare and financial well-being.

Our attorneys can help qualified elder clients within our service areas with any one of the following: Advance Directives Age Discrimination Designations of Healthcare Surrogates Durable Powers of Attorney Guardianship Housing Issues Income Maintenance Living Wills Wills

Sponsored by: FRLS is funded in part by...

19

Disaster Legal Services How can FRLS help?

FUNDED IN PART BY:

Civil legal aid organizations like Florida Rural Legal Services (FRLS) play a vital role in helping individuals and families prepare for, respond to, and recover from the impact of disasters.

Prepared By: FLORIDA RURAL LEGAL SERVICES Non-Profit Law Firm

Housing Matters Landlord-Tenant Disputes FEMA/HUD Rent Subsidy Renewal Displaced Public Housing Tenant Issues Foreclosure Prevention Real Property Title Clearing and Probate Section 8 Portability Public Adjuster Disputes HOA Special Assessments

Bankruptcy

Consumer Matters & Income Protection

Mortgage Company Disputes Repair and Contractor Scams Replacing Lost Legal Documents like Drivers Licenses, Social Security Cards, Birth Certificates, Deeds, and More

Contact FRLS:

Call 1-888-582-3410

Visit FRLS.org/hurricane-services

Access to Public Education While Displaced Powers of Attorney Guardianship & Supportive DecisionMaking Emergency Custody Modifications Parental Order Modifications (New Home/ School Locations) Domestic Violence Issues (Including ACT Emergency Shelter referrals)

Family & Education

Office Locations: Lakeland Riviera Beach Fort Pierce

Immokalee Belle Glade Fort Myers

Online intake is available 24/7.

Sí, hablamos Español. Wi, nou pale Kreyol.

Our offices serve the following counties: Lee, Polk, Palm Beach, St. Lucie, Martin, Okeechobee, Indian River, Highlands, Hardee, Hendry, Charlotte, Desoto, and Glades.

Find the local legal aid in your county at Florida Legal Aid Programs.

Apply online for any county in Florida at Florida Online Intake.

If you are Deaf, Hard of Hearing, Deaf/Blind, or Speech-Disabled, please dial 711 for the Florida Relay to connect with FRLS.

Call to see if you qualify for free legal services.

Contact Us

www.FRLS.org

Non-Profit Law Firm

1-888-582-3410

TTY: 800-955-8771

Service areas: Lee, Polk, Palm Beach, St. Lucie, Martin, Okeechobee, Indian River, Highlands, Hardee, Hendry, Charlotte, Desoto, and Glade Counties.

Also serving farmworkers statewide.