Common Estate Planning Mistakes to Avoid

An estate plan that looks complete on paper can still fail in a Miami courtroom. Most of the problems below are inexpensive to prevent and expensive to fix after the fact. Here is what goes wrong under Florida law, why it matters, and how it affects your timeline.

Mistake 1: Creating a Trust but Never Funding It

This is the single most common error South Florida families make. A revocable living trust (Ch. 736) only controls assets that are actually titled in its name. If your Coral Gables home or your brokerage account still lists you individually, those assets go through probate anyway. The fix is funding: retitling real estate, bank, and investment accounts, and updating beneficiary designations. Skipping it can add months and formal administration costs.

Mistake 2: Ignoring Florida’s Homestead Rules

Florida’s constitutional homestead protection (Art. X, §4) limits how you can leave your primary residence. If you are married or have minor children, you generally cannot freely devise your homestead, and an attempt to do so can be void, sending the property down a default path you never intended. Many Miami owners use a Lady Bird (enhanced life estate) deed to pass homestead outside probate while keeping full control during life, but it has to be drafted correctly.

Mistake 3: Accidentally Disinheriting a Spouse

Florida’s elective share statute (§732.2065 and following) entitles a surviving spouse to roughly 30 percent of the elective estate, regardless of what your will says. Plans drafted to favor children from a prior marriage often collide with this rule. Addressing it usually requires a marital agreement or deliberate planning, not silence.

Mistake 4: Outdated Beneficiary Designations

Life insurance, IRAs, and 401(k)s pass by beneficiary form, not by your will. An ex-spouse still listed on a policy will generally receive the money. Review these whenever you move, marry, divorce, or have a child.

Mistake 5: A Will with Defective Execution

Florida (§732.502) requires two witnesses and proper signing. Holographic and out-of-state DIY wills frequently fail Florida’s formalities, forcing a more costly proof process in probate court. Use a self-proving affidavit to streamline admission.

Mistake 6: Doing Nothing and Counting on Speed

Without a plan, your estate follows Florida intestacy and likely formal administration in the Miami-Dade probate court, which commonly takes many months. Summary administration is only available for smaller or older estates, so the no-plan default is rarely the fast one.

Get a Florida Review

Each of these mistakes ties back to a specific Florida statute, and the right fix depends on your family and assets. A licensed Florida estate planning attorney can audit your existing documents and close the gaps before they reach probate.