FL Wills, Trusts & Estates Specialist cheat sheet

Florida requires a will to be signed by the testator (or by another at the testator's direction in the testator's presence) and attested by at least two competent witnesses who sign in the presence of each other and of the testator; a self-proving affidavit under F.S. 732.503 supplies prima facie proof of due execution.

A will must be in writing; Florida does not recognize nuncupative (oral) wills, and holographic wills are valid only if executed with the formalities of F.S. 732.502.

A will made by a nonresident that is valid where executed is valid in Florida as to personal property, and as to real property if it complies with Florida execution requirements (F.S. 732.502) or the law of the place of execution.

A surviving spouse may elect a 30% share of the elective estate under F.S. 732.201-732.2155; the election must be filed within the earlier of 6 months after the first publication of notice of administration or 2 years after the date of death.

Intestate share of a surviving spouse under F.S. 732.102: all of the estate if no descendants survive; if all descendants are also the spouse's descendants, the spouse takes the first $60,000 plus one-half of the remainder; otherwise the spouse takes one-half.

Omitted pretermitted children under F.S. 732.302 take an intestate share unless the omission was intentional or the child was provided for by transfer outside the will; the rule applies only to children born or adopted after the will's execution.

Revocation requires a performed act: a later will or codicil, a writing declaring revocation executed with will formalities, or a physical act (burning, tearing, canceling, obliterating, or destroying) done by the testator or by another at the testator's direction and in the testator's presence with intent to revoke.

A will revoked by a subsequent will that is itself revoked by physical act revives the prior will only if the testator so intends (F.S. 732.506 abolishes automatic revival); divorce revokes provisions for the former spouse and the spouse's relatives by operation of law.

A beneficiary who unlawfully kills the decedent forfeits all interests under the will and intestacy (F.S. 732.802); abuse of a vulnerable adult may also bar inheritance, and a will provision penalizing a beneficiary for challenging the will is unenforceable under F.S. 732.517.

A Florida trust requires a competent settlor, intent to create a trust, identifiable trust property, a lawful purpose, and a beneficiary or a permitted purpose (F.S. 736.0402); consideration is not required.

Florida's rule against perpetuities is replaced by the 360-year period under F.S. 689.225; a trust may hold property for up to 360 years after creation before the interest must vest or terminate.

A revocable trust is a will substitute: the settlor retains the power to revoke, amend, and direct distributions; the trust assets avoid probate but remain subject to the elective share and creditor claims to the extent provided by law.

The trustee owes duties of loyalty, impartiality, prudent administration, and disclosure; duty of loyalty bars self-dealing, and the trustee must keep beneficiaries reasonably informed and respond to requests for trust information (F.S. 736.0813).

Trustee compensation must be reasonable; if the trust instrument sets compensation, that controls; the court may adjust unreasonable compensation, and a trustee may petition the court for instructions under F.S. 736.0201.

A discretionary trust with a spendthrift clause under F.S. 736.0502 protects a beneficiary's interest from voluntary and involuntary transfer, but does not shield the settlor's own retained interest in a self-settled trust from the settlor's creditors.

Trustee removal is permitted for breach of trust, unfitness, persistent failure to administer, or a change in circumstances that makes removal in the beneficiaries' best interest (F.S. 736.0706).

A trust terminates when its purpose is accomplished, when no beneficiary exists, or by the terms of the instrument; a trust with no ascertainable beneficiary or purpose may be terminated by the court.

Trustee liability for environmental and contractual claims may be limited by the trust instrument, and a trustee may be exculpated for acts not constituting bad faith, intentional misconduct, or reckless indifference to the trust's purposes.

Summary administration under F.S. 735.201 is available when the value of the estate subject to administration, less exempt property and protected homestead, does not exceed $75,000, or when the decedent has been dead more than 2 years; formal administration is required otherwise.

A petition for summary administration may be filed by a beneficiary or a person nominated in the will, and the court may enter an order of summary administration distributing assets directly to those entitled.

Formal administration requires a personal representative who is a Florida resident, or a nonresident who is a spouse, sibling, child, parent, or other specified relative, or a nonresident who is a legally adopted child or parent of the decedent (F.S. 733.304).

Letters of administration issue after the personal representative's qualification with the court; the personal representative must file an inventory within 60 days of issuance of letters and serve it on interested persons.

Creditors must file claims within 3 months after the first publication of notice to creditors, or within 30 days after service of a copy of the notice on a known creditor, whichever is later; claims not timely filed are barred.

The personal representative must file an accounting of the estate, and the final accounting must be served on interested persons before the estate can be closed; objections must be filed within 30 days of service.

Homestead is protected from forced sale and is not subject to administration as an asset of the estate; however, the homestead may be subject to the elective share and to claims for taxes and debts secured by the property.

Exempt property under F.S. 732.402 includes household furniture, furnishings, and appliances up to $20,000 in value, two motor vehicles, and certain qualified tuition programs, and passes to the surviving spouse or descendants outside probate.

Ancillary administration is required when a nonresident decedent leaves Florida real property or tangible personal property; the domiciliary personal representative may be appointed ancillary personal representative.

Florida has no state estate tax or state inheritance tax; the federal estate tax applies to estates exceeding the federal basic exclusion amount, which is indexed annually and is $13,990,000 for 2025.

The federal gross estate under IRC 2031 includes all property in which the decedent had an interest at death, including life insurance proceeds, jointly held property, retained interests, and powers of appointment.

The unlimited marital deduction under IRC 2056 allows an estate to pass to a surviving spouse free of federal estate tax; portability allows the surviving spouse to use the deceased spouse's unused exclusion amount (DSUE) if a timely estate tax return is filed.

The annual gift tax exclusion under IRC 2503(b) is $19,000 per donee for 2025; gifts exceeding the exclusion use the donor's lifetime exclusion and require a Form 709 gift tax return.

The federal generation-skipping transfer tax exemption is equal to the basic exclusion amount and is allocated to trusts to avoid a second layer of tax on transfers to grandchildren and later generations.

Florida intangible personal property is not subject to ad valorem tax; Florida repealed its intangible personal property tax, so intangible assets held in a Florida trust are not taxed at the state level.

Qualified personal residence trusts, grantor retained annuity trusts, and intentionally defective grantor trusts are common techniques to freeze estate value and shift appreciation to heirs; each carries specific income, gift, and estate tax consequences.

A step-up in basis under IRC 1014 applies to property included in the decedent's gross estate, giving heirs a new basis equal to fair market value at death; lifetime gifts generally carry over the donor's basis.