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Organizing Legal Documents in Florida: The Foundation of an Estate Plan

If “getting your affairs in order” is the broader mission, then organizing your legal documents is the foundation. Without the right documents — properly executed under Florida law — even the best intentions can unravel in court. A will scribbled on a notepad, a handshake promise about property, or even a typed directive without witnesses will not hold up when it matters most.


In Florida, certain documents form the backbone of every estate plan. This post explores what they are, why they matter, when they should be created or updated, and how the courts have interpreted them.


1. The Last Will and Testament


A Will directs how assets are distributed and is the most recognized estate planning document, but Florida law is strict about its requirements.


  • Execution Requirements: A will must be in writing, signed at the end by the testator who is of sound mind and either 18 or more years of age or an emancipated minor (F.S. §732.501), and witnessed by at least two individuals who also sign in each other’s presence (F.S. § 732.502(1)). Oral wills (nuncupative) and unwitnessed holographic wills are not valid in Florida.

  • Revocation on Divorce: Any provision benefiting a former spouse is automatically void after divorce (F.S. § 732.507(2)).

  • Case Example: In Ziadman v. Zaidman, 305 So 3d 30 (Fla. 3d DCA 2020), the court invalidated a will that did not strictly comply with statutory formalities, underscoring Florida’s zero-tolerance approach to execution errors.


Without a valid will, your property passes according to intestacy laws (F.S. §§ 732.101–732.111), which may exclude non-marital partners, friends, stepchildren, or charities. These laws also set the default heirship order (spouse, descendants, parents, siblings, etc.).  Often this does not match what people truly intend, particularly in blended or unconventional family situations.


2. Revocable and Irrevocable Trusts


A trust is not just for the wealthy. In Florida, trusts are one of the best tools for avoiding probate, maintaining privacy, and protecting assets.


  • Governing Law: The Florida Trust Code (F.S. Chapter 736) governs the creation, validity, and administration of trusts. Florida, like many other States throughout the USA (see those states HERE) have adopted the Uniform Trust Code.

  • Revocable Trusts: Commonly used to hold property during life and distribute assets at death without probate. The trust must identify beneficiaries, the property, and have a lawful purpose (F.S. § 736.0402).

  • Irrevocable Trusts: Useful for special needs, asset protection and tax planning, but once created, terms cannot be easily changed.

  • Trustee Duties: Trustees owe fiduciary duties of loyalty and impartiality under F.S. § 736.0801–.0813, which must be honored, regardless of family conflict.


3. Durable Power of Attorney


A durable power of attorney (POA) gives someone authority to act on your behalf in financial and legal matters, in the event of incapacity.



Without a POA, your family may need to pursue a guardianship through court (F.S. Chapter 744) to manage your affairs.


 4. Healthcare Directives and Surrogates


Medical decisions are often the most urgent — and the most contested — when someone becomes incapacitated. In Florida, you have the option to make these choices in advance with pre-authorized medical instructions.


  • Living Will: Allows you to state your wishes regarding life-prolonging procedures (F.S. § 765.302).

  • Healthcare Surrogate: Lets you designate someone to make healthcare decisions if you cannot (F.S. § 765.202).

  • Default Surrogates: Without a designation, a statutory list of default decision-makers applies, beginning with your spouse and then adult children (F.S. § 765.401).


These directives prevent disputes like those seen in the nationally known case of In re Guardianship of Schiavo, 851 So. 2d 182 (Fla. 2d DCA 2003), where years of litigation ensued because the patient had no written directives.


 5. HIPAA Authorization


Even with a healthcare surrogate, doctors and hospitals cannot release medical information unless permitted under HIPAA.


  • Federal Authority: 45 C.F.R. § 164.502(g) allows disclosure of protected health information to personal representatives if properly authorized.


Without this authorization, your designated decision-maker could be left unable to access vital medical records.


6. Practical Guidance


Having documents is only half the battle; they must be organized and accessible. Best practices include: storing originals in a fireproof safe or with your attorney, providing copies to executors, trustees, and surrogates; reviewing documents every 3–5 years, or after major life changes; 

A will tucked in a forgotten drawer may as well not exist when your family needs it.


 Checklist: Core Legal Documents

  • Last Will and Testament (F.S. § 732.502)

  • Revocable Living Trust (F.S. § 736.0402)

  • Durable Power of Attorney (F.S. § 709.2104)

  • Healthcare Surrogate Designation (F.S. § 765.202)

  • Living Will (F.S. § 765.302)

  • HIPAA Authorization (45 C.F.R. § 164.502(g))


 Conclusion


Without these documents, Florida law provides a rigid default plan if you fail to act — but it is rarely the plan anyone would choose. By organizing these key legal documents, you not only ensure compliance with statutory requirements but also preserve dignity, privacy, and peace for your loved ones.


Proper documentation is not about anticipating death; it is about empowering life with clarity and control. Without it, courts will make the choices for you.


Terra Sickler

Attorney; Twig, Trade, & Tribunal, PLLC

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