Key Takeaways

• Estate planning isn’t just about deciding where your assets go when you die — it also covers what happens if you become incapacitated, and it must address the complexity of your specific family and financial situation.
• A will does not avoid probate. By definition, probate is the court process of “proving a will” — a will-based plan almost guarantees going through it.
• Without the right incapacity documents, even a spouse of 50 years has no automatic legal authority to act on your behalf — and the alternative is a guardianship that can cost $20,000 to $50,000 or more.
• Florida’s homestead law is unlike anything in most other states. Out-of-state estate plans almost never account for it — and getting it wrong can invalidate a property transfer entirely.
• A revocable living trust is the only document that works both during incapacity and after death — but it only avoids probate if assets are actually retitled into the trust’s name.

When most people call an estate planning attorney, they have one thing in mind: making sure their assets go to the right people when they pass away. That’s a reasonable starting point — but it’s only part of the picture.

Stephen Lacey of Lacey Rezanka Attorneys at Law is an estate planning, elder law, probate and real estate who has guided families throughout Brevard County, Indian River County, and Palm Beach County through some of the most complex planning situations imaginable — blended families, business sales, nursing home crises, disabled beneficiaries, and more. In this episode of Legacy Liftoff, he breaks down how estate planning in Florida actually works, what the five core documents do, and what happens to families who skip any one of them.

What Estate Planning Actually Is — and What Most People Get Wrong

Stephen Lacey: “When they usually call, they’re thinking, ‘I just want to direct where I want my assets to go when I pass away.’ But it is so much more than that.”

Estate planning covers two distinct periods: while you’re living and after you’re gone. The living side addresses what happens if you become incapacitated — who manages your finances, who makes your healthcare decisions, and what your end-of-life wishes are. The death side addresses who gets your assets, when, and how.

Beyond that, estate planning must account for the complexity of real life — children who don’t get along, blended families with competing interests, business ownership, significant real estate holdings, or a beneficiary with special needs. A plan that ignores those realities isn’t really a plan. It’s a document waiting to fail at the worst possible moment.

The most common misconception is that a will is all anyone needs. It isn’t — and understanding why starts with understanding what a will actually does.

What Happens If You Have No Documents at All

Before walking through the five core documents, it’s worth understanding what happens to families who have none of them.

On the incapacity side: if someone becomes incapacitated without a power of attorney or healthcare documents in place, their family is thrust into guardianship. Even a spouse of 50 years has no automatic legal authority to sign for or act on behalf of an incapacitated partner without court approval. Guardianship requires two attorneys — one for the incapacitated person and one for the proposed guardian — plus a doctor, nurse, and social worker to conduct a medical assessment. A judge rules on the case, and then the court-supervised process continues throughout the entire period of incapacity. Annual accountings are required. Court fees drain assets steadily.

Stephen Lacey: “It’s very expensive, and it’s ongoing. Twenty, thirty, fifty thousand dollars — easy.”

If the family can’t afford an attorney, they turn to legal aid, which typically has a three-month waiting list. All of this is entirely avoidable with the right documents in place.

On the death side: without a will or trust, Florida’s intestacy statutes decide everything. In a blended family, this can be catastrophic — the surviving second spouse may end up sharing assets with stepchildren in ways no one intended and no one wanted.

The Five Core Estate Planning Documents — and What Each One Does

1. The Living Will

A living will — also called an advance directive — addresses a very specific situation: you are being kept alive solely by life support machinery, with no chance of recovery. It expresses your wish to be allowed to pass naturally in that circumstance.

Many people hesitate to complete this document, often for religious reasons. But Stephen Lacey finds that once the safeguards are explained, most clients go ahead and execute it. Two physicians must independently certify that the patient is in an end-stage or vegetative condition with no possibility of recovery before life support can be removed. This is not a casual decision — doctors take it seriously, and the bar is deliberately high.

The alternative to having a living will is placing that impossible decision entirely on a family member at the most devastating moment of their life. Most people, when they understand that, decide they’d rather have the document.

2. The Healthcare Surrogate Designation

A healthcare surrogate designation names the person who will make medical decisions on your behalf when you can’t make them yourself. It’s different from a living will — this document is about active medical decision-making during incapacity, not just end-of-life situations.

The right person for this role isn’t necessarily the closest relative. It needs to be someone who can absorb complex medical information delivered in a high-stress environment and make sound decisions under pressure. Stephen Lacey also stresses the importance of a backup and a backup to the backup — because without named alternates, a Florida statute allows a spouse or relative to step in by default, and that person may be the last one you’d want making those decisions.

Both the healthcare surrogate and the power of attorney should include HIPAA language — without it, the named person may not be able to access medical information at all, which defeats the purpose of the document entirely.

3. The Durable Power of Attorney

The durable power of attorney designates an agent to manage financial and legal decisions during incapacity. It’s one of the most important documents in any estate plan — and one of the most frequently done wrong.

In Florida, a 2010 change in the law requires every specific power to be individually listed in the document. If a power isn’t named, the agent doesn’t have it. This transformed Florida powers of attorney from two or three pages to roughly eighteen. A DIY form or an out-of-state document almost certainly won’t meet this standard.

Stephen Lacey: “We’ve had it to where people have brought in a power of attorney they did online, they’re so excited they did that before mom got incapacitated, and now they want to apply for Medicaid — but they can’t, because the power of attorney didn’t give them that power.”

Like the healthcare surrogate, the POA must include a backup and a backup to the backup. Without those alternates, the death or incapacity of the named agent leaves the family in exactly the same guardianship situation the document was meant to prevent.

One more critical point: the durable power of attorney ends the moment the principal dies. It is a living-only document. At death, authority passes to the will or the trust — never to the POA.

4. The Last Will and Testament

A will serves three primary purposes: it names the person you want to serve as guardian for your minor children, it designates who receives your assets and under what conditions, and it gives the personal representative (executor) authority to manage the estate — paying creditors, selling real estate if needed, and making distributions to beneficiaries.

What a will does not do is avoid probate. Probate is, by definition, the court process of proving a will. A will-based plan almost guarantees going through it.

There is one genuine advantage to the probate process: a judge oversees the personal representative’s conduct, providing a check against mismanagement or misappropriation. For families where there’s genuine uncertainty about who’s managing things, that oversight has real value.

But the costs are significant. Florida statute sets the reasonable attorney fee for probate at approximately 3% of the assets that pass through the process — which adds up quickly on a substantial estate. The timeline, even when handled efficiently, is typically six to nine months. The first 45 to 60 days are spent waiting for the personal representative to even be officially appointed by the court. And probate is public — filings in the court record reveal who the beneficiaries are and where they live, making them potential targets.

5. The Revocable Living Trust

A revocable living trust is the only estate planning document that operates both during your lifetime and after your death. During incapacity, the successor trustee steps in to manage trust-held assets — no court involvement required. At death, those assets pass directly to beneficiaries without going through probate.

Stephen Lacey: “The trust can kind of be operational both during life and at death, but it’s the only one that is like that.”

Privacy is another major advantage. Stephen Lacey points to Robin Williams as an example: when Williams died, it was known that he had the Neverland Trust — but the contents, the beneficiaries, and the distribution terms were never made public because it was a trust-based plan. A will-based plan would have put all of that into the public court record.

A trust also raises the bar for anyone who wants to challenge the plan. With a will in probate, a disgruntled party can file almost anything with the court and bring the entire process to a standstill — legitimate or not. With a trust, they’d have to file an actual cause of action against the trustee to get traction.

Two things are required for a trust to work:

1. Create and execute the trust document with all required Florida formalities
2. Fund the trust — actually retitle assets into the trust’s name

Step two is where many people fall short. A trust that exists on paper but holds no assets will send everything through probate anyway, via a “pour-over will,” before it reaches the trust. The trust only avoids probate for assets that are already titled in its name.

Who actually needs a trust versus a will? It depends on the individual. A couple worth $15 million with no children and no interest in probate avoidance might reasonably choose a will-based plan. Someone with significant real estate, complex family dynamics, or a desire for privacy is likely better served by a trust. Retirement accounts are a specific case — they cannot be titled in a trust while the owner is living, so the power of attorney always controls those assets.

Florida Homestead: The Document Trap Most Out-of-State Plans Fall Into

Florida homestead law is one of the most significant — and most misunderstood — aspects of Florida estate planning. And it’s the thing out-of-state documents almost never get right.

If you’re married, Florida law requires that your homestead pass to your surviving spouse unless that right has been waived in a valid prenuptial or postnuptial agreement. If you have minor children, you cannot pass the homestead to anyone other than your spouse or those children — regardless of what your will or trust says.

These restrictions don’t exist in states like Ohio, New York, or Michigan. Documents drafted there simply don’t contemplate them. Executing a deed without proper homestead compliance can create a void transfer and a title problem that doesn’t surface until the property is sold — sometimes years later.

There’s also a tax dimension: Florida property appraisers require specific language in a trust document demonstrating compliance with homestead law before granting the homestead tax exemption. An out-of-state trust almost never includes this language — and without it, the exemption may be lost.

Stephen Lacey: “If all your assets are in Florida, why would you want Ohio law to control those assets? You’d want Florida laws to control them.”

This is one of the most consistent problems Stephen Lacey sees with new Florida residents in communities like Viera, Rockledge, Melbourne, and Suntree who have relocated from northern states and brought their old documents with them. The documents may have been perfectly valid in the state where they were drafted. They may not be adequate — or even fully enforceable — for Florida assets.

When to Update Your Estate Plan

The standard triggers for an estate plan review — marriage, divorce, new children or grandchildren, major asset changes, moving to Florida — are well known. But several additional circumstances warrant a conversation with an estate planning attorney that many people overlook:

Planning to sell a business. Tax-efficient structuring of a business sale needs to be coordinated with the estate plan before closing. Who manages things if the owner doesn’t make it to the closing table? Stephen Lacey has handled exactly that scenario — a business owner passed away before the sale was completed, throwing everything into chaos.

Accumulating significant real estate. Additional properties may trigger the need for LLCs or other asset protection structures alongside the estate plan itself.

Going into private practice. Physicians and dentists leaving a hospital group to open their own practices need to think about how the practice and personal assets are structured to shield against professional liability.

Anticipated major liquidity events. Employees with significant equity stakes in companies approaching an IPO need proactive planning to minimize estate and income tax exposure. Failing to act before a major liquidity event can leave an enormous, avoidable tax burden for the family.

The Most Expensive Mistakes — and What They Cost

Stephen Lacey is direct about what happens when these documents are missing, outdated, or improperly drafted for Florida:

• Guardianship: $20,000 to $50,000 or more, ongoing, with court oversight draining assets through annual accounting requirements
• Probate: attorney fees at roughly 3% of estate assets, a six-to-nine-month timeline, public exposure of beneficiary information, and a forum for challenges from disgruntled parties
• Disabled beneficiaries without a plan: families who refuse to plan for a child with disabilities leave that child’s financial future in disarray — sometimes without enough assets remaining to solve the problem after the fact
• Tax inefficiency on major transactions: failing to use available tools like GRATs, charitable remainder trusts, family LLCs, or irrevocable trusts before a significant event can cost millions
• Asset protection gaps: professionals and real estate investors who build wealth without the right structures can lose everything to a single liability claim

The cost range for preventable mistakes: $50,000 on the low end, millions of dollars at the high end.

Ready to Put a Real Plan in Place?

Whether you’re starting from scratch, moving to Florida with documents from another state, or haven’t reviewed your plan in years, the team at Lacey Rezanka Attorneys at Law is ready to help. They serve families across Titusville, Rockledge, Viera, Melbourne, Suntree, Palm Bay, Malabar, Merritt Island, Cape Canaveral, Cocoa Beach, Satellite Beach, Indian Harbour Beach, Indialantic, Melbourne Beach, and throughout Brevard County, Indian River County, and Palm Beach County.

The five documents work as a system. Missing one creates a gap your family will have to deal with at the worst possible moment.

Call (321) 608-0890 or schedule your consultation at llr.law/contact.

Put a plan in place that actually fits your life — before you need it.