Estate planning is one of those things almost everyone agrees they should do and almost everyone keeps putting off. I understand the impulse — after about twenty years of doing this work here in Fort Myers, I've heard every version of "we'll get to it next year." But the families who are glad they planned are rarely the ones who expected to need it. Planning is not really about death. It's about making sure the people you love aren't left guessing during the hardest moments of their lives, whether that's a sudden illness, a fall, a stroke, or simply old age catching up faster than anyone wanted.

If you live in Lee, Collier, or Charlotte County, your plan is governed by Florida law — and Florida has its own rules that differ in important ways from the state you may have moved here from. Below is a plain-English look at what estate planning actually involves in Southwest Florida, who needs it (more people than you'd think), and what happens when there's no plan at all.

What Estate Planning Really Means

At its simplest, estate planning is putting the right documents in place so your wishes are clear — both after you're gone and while you're still here but unable to speak for yourself. A good plan answers three questions: Who receives what you own? Who manages your finances if you can't? And who makes medical decisions if you're unable to make them yourself?

That last pair of questions is the part people overlook. A will only speaks after death. It does nothing for you during a hospital stay, a dementia diagnosis, or the months after a serious accident. The documents that protect you during life — a durable power of attorney and your health care directives — are just as important as the will, and arguably get used more often.

A Will Is Not the Same as an Estate Plan

People use "will" and "estate plan" interchangeably, but a will is just one piece. Under Florida law, a will is a written document, signed by you and two witnesses who watch you sign and sign in front of you and each other (Fla. Stat. §732.502). It names a personal representative (what other states call an executor), directs how certain assets pass, and — importantly for parents — can nominate a guardian for minor children.

A couple of Florida-specific points trip up newcomers. Florida does not recognize handwritten "holographic" wills or oral wills, even if they're perfectly valid in the state you came from. And while notarization isn't required to make a Florida will valid, having it properly notarized as "self-proving" saves your family a real headache during probate. The Florida Bar's consumer pamphlet "Do You Have a Will?" is a solid, neutral overview if you want to read more.

The Core Documents in a Florida Plan

Last Will and Testament

The will handles probate assets and names who's in charge. For many Southwest Florida families — a married couple who want everything to pass to the survivor and then to the children — a well-drafted will does most of the job.

Revocable Living Trust

A revocable trust holds your property during life and lets a successor trustee manage and distribute it after death, often without probate. That can matter here more than in other places: a lot of my clients own a primary home in Florida and another property up north, and a trust can spare the family a second court proceeding in another state. A trust isn't right for everyone, but if you own real estate or want a smoother handoff, it's worth a conversation. The Bar's pamphlet on "The Revocable Trust in Florida" lays out the basics.

Durable Power of Attorney

This is the document that lets someone you trust handle your finances if you can't — pay the mortgage, manage accounts, deal with the bank. Here's where I have to correct a common misconception, because the internet is full of out-of-date advice on this point. Florida no longer allows "springing" powers of attorney — the kind that only kick in once you're declared incapacitated. Under the Florida Power of Attorney Act (Fla. Stat. §709.2108), a power of attorney signed on or after October 1, 2011 takes effect immediately upon signing. A springing clause makes the document ineffective.

That makes who you name even more important, because your agent has authority the moment the ink dries. It also means a Florida durable power of attorney must be signed before two witnesses and a notary to be valid. If your current document is an old springing POA from another state, it may not work when your family needs it — that's exactly the kind of thing worth having reviewed. See the Bar's "Florida Power of Attorney" pamphlet for the details.

Advance Health Care Directives

In Florida, your medical planning typically comes in two parts under Chapter 765: a living will, which states your wishes about life-prolonging treatment, and a designation of health care surrogate, which names the person who speaks with your doctors if you can't. (Interestingly, the surrogate is effectively a "springing" document — it activates on incapacity — which is part of why Florida shifted financial powers of attorney to immediate effect.) These directives need two witnesses, at least one of whom isn't your spouse or a blood relative, and they don't require a notary. The Supreme Court of Florida–approved forms are available through the state's Health Care Advance Directives Consumer Guide, and the Bar summarizes the documents here.

Beneficiary Designations

The least glamorous and most overlooked piece. Your life insurance, IRA, 401(k), and "payable on death" accounts pass by their beneficiary forms — not by your will. I've seen an ex-spouse inherit a policy years after a divorce because nobody updated the form. Whatever else you do, pull those designations and confirm they still say what you want.

Who Actually Needs an Estate Plan?

The honest answer is almost everyone, but a few groups in our area have especially clear reasons to act.

Retirees and relocating "snowbirds." Southwest Florida is full of people who moved here from somewhere else — and a will drafted in Ohio, Michigan, or New York should be reviewed under Florida law once you've made Florida your home. Establishing Florida domicile affects your homestead protection, your taxes, and how your documents are interpreted. The good news: Florida has no state estate tax and no inheritance tax, which is one of the reasons so many families plan their later years here.

Parents with minor children. If you have young kids, the most important thing your will may ever do is nominate a guardian. Without that, the question of who raises your children gets answered by a judge with far less to go on than you could have given them.

Homeowners and married couples. Your home is likely your largest asset, and in Florida it carries special homestead protections under Article X, Section 4 of the state Constitution — protections that also restrict how the home can be left if you have a spouse or minor child. That makes coordinating your deed, will, and trust genuinely important, not just paperwork.

Blended families and unmarried partners. Florida's default inheritance rules follow legal relationships, not the actual shape of your family. If you want a stepchild, a long-term partner, or a particular person to inherit or to make decisions for you, you have to say so in valid documents. Assumptions are where these families get hurt.

Younger adults. You don't need much of an estate to need a durable power of attorney and a health care surrogate. An accident doesn't check your age first, and without those documents, even a parent or partner may have to go to court to help you.

A lot of folks in our community came to this realization the hard way after Hurricane Ian. When the storm forced families to think about what would happen if the unexpected struck, a great many of them came in not for anything dramatic — just to finally get their affairs in order. There's nothing morbid about that. It's preparation, the same as boarding up windows.

What Happens If You Don't Plan

The decisions don't disappear when you skip planning — they just get made by someone else, usually a court, under rules that may not match your wishes.

If you die without a will, Florida's intestacy statute (Chapter 732, Part I) decides who inherits, in a fixed order that makes no allowance for your particular family or anyone's special need. The estate still goes through probate — here in Lee County, that's the Probate Division of the Twentieth Judicial Circuit, which also covers Collier, Charlotte, Glades, and Hendry counties. The Lee County Clerk of Court's probate page gives a sense of the process, and the Bar's "Probate in Florida" pamphlet explains it in plain terms. Probate isn't a catastrophe, but it takes time, it's public, and a clear plan makes it markedly smoother.

The bigger gap is incapacity. Without a durable power of attorney and a health care surrogate in place, your family may have no legal authority to act for you at all — and their only option becomes a guardianship proceeding, where a court appoints someone to manage your affairs. Guardianship is slower, more expensive, and more intrusive than the documents that would have avoided it. (The Bar's "What Is Guardianship?" pamphlet explains what's involved.) Nearly every guardianship I see could have been prevented by a few pages signed while the person still had capacity.

When to Start — and When to Revisit

The best time to plan is before you need it, while the choices are calm and unhurried. After that, treat your plan as a living thing, not a "set it and forget it" file in a drawer. Review it after any of these:

• Marriage, divorce, or the birth or adoption of a child
• A move to Florida from another state (especially if your documents were drafted elsewhere)
• Buying a home or a significant change in your assets
• The death or declining health of someone you named as an agent, trustee, or guardian
• Approaching or entering retirement

Even without a major event, a check-in every few years is wise. People you trusted move away or pass on; beneficiary forms go stale; the law changes. A plan that fit your life a decade ago may not fit it now.

A Few Myths Worth Retiring

"I'm too young." Capacity can be lost at any age. The durable power of attorney and health care surrogate exist precisely for the unexpected.

"I don't have enough to bother." Planning isn't only about wealth — it's about who can step in for you and who avoids a court fight later. A modest estate can still create a probate or guardianship mess without basic documents.

"A will covers everything." It doesn't reach beneficiary designations, it doesn't help during incapacity, and on its own it guarantees a trip through probate.

"I can do it once and never look at it again." Lives change. Plans should too.

Frequently Asked Questions

Do I need a trust, or is a will enough in Florida?

It depends on your assets and goals. Many families are well served by a will plus durable power of attorney and health care directives. A revocable trust becomes especially useful if you want to avoid probate, own property in more than one state, or want a more private, structured handoff. It's a question best answered after looking at what you actually own.

Is a power of attorney from another state valid in Florida?

It may be, but it often runs into trouble — particularly older "springing" documents, which Florida no longer permits for documents signed after October 1, 2011. Florida banks and title companies can be strict about Chapter 709 requirements. If you've relocated to Southwest Florida, having your POA reviewed (and usually re-executed under Florida law) is one of the most valuable things you can do.

Does Florida have an estate or inheritance tax?

No. Florida imposes neither a state estate tax nor an inheritance tax. Very large estates may still face the federal estate tax, but the vast majority of families won't.

Where does probate happen if I live in Lee County?

In the Probate Division of the Twentieth Judicial Circuit, which serves Lee, Collier, Charlotte, Glades, and Hendry counties. Lee County matters are handled through the Clerk of Court in Fort Myers.

What happens to my home if I die without a plan?

Florida's homestead rules and intestacy statute take over. If you have a spouse or minor children, the Constitution limits how the home can pass, and the result may not be what you'd have chosen. Coordinating your deed with your will or trust avoids most of these surprises.

Getting Started

Estate planning doesn't have to be overwhelming. For most families it comes down to a handful of well-drafted documents and a clear conversation about what you want. The reward is real: your loved ones know your wishes, they have the legal authority to act, and they're spared avoidable conflict and delay during an already difficult time.

If you're in Fort Myers, Cape Coral, Bonita Springs, Estero, Naples, Punta Gorda, or anywhere in Southwest Florida and you've been meaning to get this handled, I'd welcome the chance to help. Reach out to our office to set up a consultation, and we'll build a plan that fits your family and stands up under Florida law.

This article is general information about Florida law and is not legal advice. Reading it does not create an attorney-client relationship. Every situation is different; please consult a Florida estate planning attorney about your particular circumstances.