Creating a will may seem straightforward, but in Florida, even small mistakes can lead to confusion, delays, and unintended results for your loved ones. Certain assets, instructions, and conditions may not belong in a will at all, and including them can create problems instead of clarity. Understanding what to leave out is just as important as knowing what to put in.
At Zweben Law Group, we work with families across Florida to create estate plans that are clear, practical, and legally sound. Below, we break down what you should not include in your Florida will and how avoiding these common mistakes can help protect your family and your legacy.
1. Assets with Designated Beneficiaries
Some assets skip the will entirely. If you named a beneficiary on an account, that asset transfers straight to the person listed after you pass, without probate. Your will cannot change that payout.
Common examples include the following, and you can check them in just a few minutes:
- Life insurance policies with named beneficiaries.
- Retirement accounts like 401(k)s and IRAs.
- Payable-on-death or transfer-on-death bank and brokerage accounts.
Life changes often shift your plans, and the forms on file need to match your wishes. Review your designations after marriage, divorce, a birth, or a loss, then update the paperwork with the company that holds the account. That single step prevents conflicts later.
Next, let’s look at jointly owned property, which follows its own track outside the will.
2. Jointly Owned Property
Property titled as joint tenants with right of survivorship, or as tenants by the entirety for married couples, moves to the survivor automatically. A will cannot redirect that transfer. The title controls it.
By contrast, tenancy in common works differently. Your share does not pass to the other co-owner by default, and you can give your portion in your will. The deed’s wording tells you which setup you have.
This difference sounds small, yet it has big effects on who receives what. If the deed needs to reflect your goals, change the title now, not later.
3. Property Held in a Trust
Assets you placed into a living trust follow the trust instructions, not the will. If you want to change who receives trust property, use a trust amendment. Moving directions into the will only creates confusion, and the trust still wins.
| Asset Type | Primary Transfer Method | Include in Will? | Notes |
| Life insurance with beneficiary | Beneficiary form | No | Update with the insurer after life events. |
| 401(k) or IRA | Beneficiary form | No | Spousal consent rules can apply. |
| POD or TOD accounts | Account designation | No | Bank or brokerage form governs. |
| Joint tenancy with survivorship | Title to survivor | No | Will cannot override the deed. |
| Assets in a revocable living trust | Trust document | No | Use a trust amendment for changes. |
| Solely owned home, not homestead restricted | Will or trust | Yes | Watch Florida Homestead rules. |
| Tenancy in common share | Will or trust | Yes | Your share can be devised. |
If you have both a will and a trust, match them up. Mixed messages set families up for disputes, and that is avoidable with one review.
4. Funeral and Burial Instructions
Funeral arrangements often get handled quickly, long before anyone opens the will. If your directions sit only in the will, your family might not see them in time. That can lead to choices you did not want to make.
Use a separate letter of instruction, tell your loved ones in plain language, and keep the note easy to find. You can even pre-plan and pre-pay with a funeral home. This approach takes the guesswork off your family’s plate.
These simple steps help your wishes get carried out on day one, not weeks later:
- Write a short memo with your preferences for burial, cremation, or services.
- Share the memo with the person who will handle arrangements.
- Store it outside a safe deposit box, which can be hard to access right away.
Next up, let’s cover conditions in a will that the law will not honor.
5. Conditional Gifts with Illegal or Impossible Conditions
Gifts tied to illegal acts, or to tasks no one can perform, do not hold up. Requiring someone to marry, divorce, or change religious beliefs crosses the line and will not be enforced. A court can strike that condition, and the gift can get stuck.
Reasonable conditions tend to work. A common one is finishing a degree or waiting until age 25 to receive funds. Keep conditions clear, achievable, and lawful.
Next, let’s talk about pets, a spot where good intentions often collide with the rules.
6. Gifts to Pets (Without a Pet Trust)
Pets cannot own property under Florida law. If you leave money “to” your pet, nothing valid passes. The better plan is a Florida pet trust.
A pet trust lets you name a trustee to manage funds and a caretaker to provide daily care. You can set feeding, medical, and lifestyle instructions in writing. That way, your furry pal gets what you wanted, with someone accountable.
We also need to look at gifts for loved ones with disabilities who rely on public programs.
7. Leaving Gifts to a Beneficiary with Special Needs (Without a Special Needs Trust)
Sending assets directly to a person on Medicaid or SSI can bump their resource limits and cut off benefits. A special needs trust can pay for extras like therapies, trips, or education without harming eligibility. You can set it up as a stand-alone trust or create one inside your will.
Clarity here protects both your gift and the support your loved one depends on. One wrong step can undo years of planning. Better to set the right path now.
Real estate across state lines brings its own twist, so let’s cover that, too.
8. Assets Located Outside of Florida
A Florida will can speak to property in another state, yet that often triggers a second probate, called ancillary probate in the other state. A separate will that follows the other state’s rules can cut time and cost. Title companies and courts tend to move faster with local documents.
Keep both wills consistent. Conflicting directions can slow everything down and invite disputes. A short review prevents that tangle.
Florida Homestead rules are different from those in other states, and small wording changes can have big results.
9. Directing the Sale of the Homestead
Florida Homestead enjoys strong protection from most creditors. If your will orders the homestead sold, the proceeds can lose that shield and open the door to claims. Leaving the property to loved ones without a sale instruction often keeps the protection intact.
Talk through your family’s needs and debts before picking a path. A custom plan for the homestead, written the right way, guards value for your heirs. Slight tweaks here make a big difference.
There is also a constitutional limit on who can receive the homestead in certain family setups.
10. Improper Devise of Your Homestead
Florida restricts gifts of the homestead if you are married or have a minor child. If a minor child exists, the homestead cannot be devised in a way that cuts off that child’s interests. If you are married with no minor child, leaving the homestead to someone other than your spouse can result in a life estate for the spouse or an election for an interest.
This field has traps for the unwary. A quick title and family status review can save months in court. Put the right language in the will to fit Florida rules.
One last topic lands on the health care side, where state agencies can ask for payback from estates.
11. Failing to Account for Medicaid
The Florida Agency for Health Care Administration can recover funds paid for Medicaid benefits provided after age 55. Claims usually reach only assets that pass through probate. Property outside probate and exempt items, like a homestead under Florida law, can stay out of reach, and no recovery happens while a spouse survives.
Bad drafting can pull assets into probate and expose them to a claim. A tighter plan uses beneficiary designations, trusts, or joint titling to keep the estate smaller. That way, more goes to your family, not to a bill.
If any of this sounds a bit tangled, you are not alone. Our team works through these details every day and keeps the focus on your goals.
Need Assistance with Your Florida Will?
Zweben Law Group cares about clear plans that spare your family stress later. If you want a Florida will that avoids the traps above, you can reach us through our Contact Us page or by phone at 772-223-5454. Let’s protect your wishes, your home, and the people you love. A short conversation now brings real peace of mind later.
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