Key Takeaways
- Dying without an estate plan in Florida does not mean your spouse automatically inherits everything — asset type, titling, and family structure all determine what actually happens.
- Estate planning isn’t just for the wealthy. A $100,000 estate can lose $5,000–$10,000 to probate costs, and smaller estates are often hit hardest proportionally.
- A will does not avoid probate — it is a probate document. A trust is the primary tool for bypassing the probate court.
- Adults of any age need at least basic estate planning documents. At 18, parents lose all legal authority to make healthcare or financial decisions for their children.
- Joint ownership with anyone other than a spouse frequently backfires — creating creditor exposure, unintended inheritance outcomes, and avoidable tax problems.
If you’ve ever thought “I don’t need an estate plan yet” or “my spouse will just get everything when I die,” you’re not alone — and you might be setting your family up for a very expensive surprise. On a recent episode of Trust Me, It’s Complicated, estate planning, probate, and elder law attorney John Marshall of Marshall Law breaks down the five biggest estate planning myths he sees cost Florida families thousands — sometimes tens of thousands — of dollars.
Marshall’s office is based in Wildwood, Florida, putting him right in the heart of The Villages, the largest retirement community in the country. But as he’s quick to point out, these myths don’t only affect retirees. He serves clients across The Villages, Wildwood, Leesburg, Lady Lake, Fruitland Park, Minneola, Sumter County, and Lake County — and the same costly assumptions show up across all ages and income levels.
Let’s dig into each myth.
Myth #1: “Everything Automatically Goes to My Spouse”
This is probably the most dangerous myth Marshall encounters, and it’s completely understandable why people believe it. You’re married, your assets are yours, so naturally your spouse inherits everything when you’re gone — right?
Not in Florida.
“It depends on multiple factors,” Marshall explains, “and if one issue doesn’t fall in line, no, your spouse doesn’t necessarily inherit everything.”
Those factors include the type of asset, how it’s titled, whether either spouse has children from a prior relationship, and whether there are minor children involved. Florida’s homestead laws in particular create a layer of complexity that catches a lot of families off guard.
Here’s a real example from Marshall’s current caseload: A wife owned the home before marriage. She and her husband never updated the deed. They’d been happily married for twelve years when she died — without an estate plan. Did her husband inherit the home?
No. Because she had children from a prior relationship, Florida law gave her husband a life estate — meaning he has the right to live in the home, pay the utility bills, the property taxes, the insurance, and the routine maintenance. But he cannot sell it. Meanwhile, her children hold what’s called a remainder interest — they will eventually own the property, but they have no right to use or sell it in the meantime. And if a major expense comes up — say the roof needs replacing or the HVAC system fails — that cost falls on the children as remainder interest holders, even though they get no benefit from the property today.
“Nobody is happy in that circumstance,” Marshall says, “all because wife thought, ‘Hey, when I die, my husband’s gonna inherit the home.'”
Bank accounts follow similar logic. If a spouse dies and the surviving spouse isn’t named on the account, and the deceased had children from another relationship, the surviving spouse may only receive half — with the other half going to those children.
There’s also a window that many people miss entirely. Florida law allows a surviving spouse to elect a 50% ownership share of homestead property instead of a life estate — but that election must be made within six months of the date of death, not the date probate is opened. One of Marshall’s clients didn’t find out about this option until a full year after his wife passed. That window was gone.
The fix is straightforward: work with an estate planning attorney to make sure your assets are titled correctly and that your plan says clearly who gets what.
Myth #2: “Estate Planning Is Only for the Wealthy”
Marshall has been doing probate work for over twenty years, and he says this myth may be the one that does the most quiet damage.
“Even small estates can face staggeringly high probate costs,” he notes. A $100,000 estate can easily run into $5,000 to $10,000 in probate expenses — court fees, legal fees, publication costs, and the time involved in resolving creditor claims. When you do that math as a percentage, a smaller estate is often hit far harder than a million-dollar one facing the same process.
And the process is getting more expensive. Judges and district courts across Florida are layering on their own requirements on top of the Florida Probate Code and Florida Probate Rules. What used to take six months now commonly takes eight to nine. Those extra steps cost time and money — regardless of the size of the estate.
But here’s what many people don’t think about: estate planning isn’t only about what happens when you die. Half of it is about what happens if you’re alive but incapacitated and need someone to step in and help you.
Without the right documents in place, that process goes through the courts in what’s called a guardianship proceeding. Getting a guardian appointed can cost $5,000 to $10,000 on its own. When family members disagree about who should fill that role, Marshall has seen those cases balloon to $20,000, $30,000, even $50,000.
“Had there just been estate planning done up front,” he says, “we could have headed off those issues well in advance, and you could have picked who you wanted in those roles — not left it to a judge who does not know you.”
The right estate plan doesn’t have to be elaborate or expensive. Depending on your situation, it might be a will, a lady bird deed, or a coordinated set of beneficiary designations. The goal is making sure your assets reach the right people efficiently — and that someone you trust is empowered to act on your behalf if you can’t.
Myth #3: “A Will Avoids Probate”
This one surprises a lot of people. A will is an estate planning document, so it must keep your estate out of probate court — right?
Actually, it’s the opposite. A will is a document you file with the probate court telling them how you want your assets distributed. It doesn’t bypass the court; it gives the court its instructions.
“A will is basically saying, ‘I have one foot in the probate court,'” Marshall explains. “I am going to probate.”
The tool that actually avoids probate is a trust. When assets are held in a trust, they transfer to beneficiaries outside of court oversight, without the time delays and costs of the probate process. Attorneys often pair a trust with what’s called a pour-over will — a backup document that tells the probate court to route any stray assets into the trust if they somehow end up there.
Even trusts aren’t completely bulletproof. Marshall had a client whose estate was fully funded into a trust — and still needed a probate estate opened after the client was killed in a car accident, because pursuing the wrongful death claim legally required it. The pour-over will then directed any recovery from that claim into the trust for distribution to the beneficiaries.
There are other ways to move assets outside of probate — beneficiary designations, pay-on-death accounts, joint ownership — but Marshall is careful about recommending them in isolation. Each comes with its own set of risks. What if the named beneficiary has already died? What if they’re in the middle of a lawsuit or a divorce when they inherit? What if the beneficiary is a minor child?
That last one is more common than you’d think. In Florida, minors under 18 cannot own property. If a life insurance policy or bank account names a minor as the beneficiary, any amount over $15,000 requires a court-appointed guardian to receive and manage the funds. By the time that process plays out, Marshall says, $5,000 to $8,000 of the inheritance can disappear into legal and administrative costs — before the child sees a dollar.
The bottom line: avoiding probate isn’t always the right goal, and the way you try to avoid it matters enormously. That decision deserves a real conversation with an estate planning attorney who understands your specific assets and family situation.
Myth #4: “I’m Too Young to Need an Estate Plan”
Marshall gets this one a lot — and not just from twenty-somethings. He hears it from people in their thirties and forties who figure they’ll get around to it eventually.
When his niece turned 18, he gave her a power of attorney and healthcare directives as a gift. His wife made sure there was something else under the tree too. But his point was serious: the moment someone turns 18, their parents lose all legal authority to make decisions on their behalf.
That means if an 18-year-old is in a car accident and ends up in the hospital, the parents cannot get medical information without a signed HIPAA authorization. They cannot make healthcare decisions without an advanced directive naming them as the healthcare surrogate. They cannot handle any financial matters without a power of attorney.
Marshall shared a story that puts this in stark relief. A client’s adult daughter was shot during a school shooting — not fatally, but seriously. When her parents called the hospital, the first thing they were asked for was a HIPAA waiver. They didn’t have one. For six hours, they drove to the hospital not knowing whether their daughter was alive.
Marshall also experienced this firsthand. He was involved in a serious car accident that left him with a bad concussion and two months of impaired short-term memory.
“For about two months, the very documents that I encourage people to have — the very documents that I draft for others on a routine basis — I actually needed for myself.”
His wife was able to attend his medical appointments and handle financial matters on his behalf because the documents were already in place. Without them, even his own spouse would have had no legal authority to act.
Young families with children face even higher stakes. If both parents die simultaneously — which does happen — minor children are left without a named guardian, assets go through probate, and family members may end up fighting over who takes custody. Marshall has seen those disputes firsthand, and the question he always found himself asking was: is this really about the kids, or is it about the money?
Estate planning needs change as life does. What you need at 18 is different from what you need at 35 or 55. But the baseline — healthcare directives, a power of attorney, a HIPAA authorization — should be in place the moment someone becomes a legal adult.
Myth #5: “Joint Ownership Solves Everything”
Joint ownership between spouses is generally a smart move in Florida. When a married couple owns assets together, individual creditors of one spouse typically can’t reach those jointly held assets. When one spouse dies, the other inherits without probate. It works well.
The trouble starts when people extend that logic beyond the marital relationship — particularly when they add an adult child to an account or property title, either for convenience or to avoid probate.
Marshall has seen this go wrong in three distinct ways.
The creditor problem. One of his clients added her daughter to her bank account so the daughter could help pay bills. The daughter, unbeknownst to her mother, was facing a lawsuit at the time. A judgment was entered against the daughter, and since the daughter’s name was on the account, the creditor garnished it — taking money that was entirely the mother’s. Recovering it would have cost $4,000 to $5,000 in legal fees to chase down $9,000. The mother walked away from the loss entirely.
The inheritance problem. A father put his nearby daughter as co-owner on three CDs worth several hundred thousand dollars, intending the pay-on-death designations to route each account to a different child. When he died, the daughter was still alive — so the POD designations never triggered. She owned all three accounts outright. When she asked Marshall whether she had to share with her siblings, his answer was honest: legally, no. She didn’t. She kept the money, sent her siblings a letter saying so, and died of alcohol poisoning four months later. Her siblings never received a cent.
The tax problem. A son inherited his father’s account as the surviving co-owner, then gave his brother half out of a sense of fairness. That transfer wasn’t treated as an inheritance — it was legally a gift, which required a gift tax return with the IRS. The son hadn’t filed one, and he now faced potential penalties that a proper inheritance through a trust or will would have avoided entirely.
Deed language creates its own category of risk. Marshall handled a case where a deed simply added a son’s name alongside the mother’s, without the specific language “joint tenants with right of survivorship.” Under Florida law, that defaulted to tenants in common — meaning when the mother died, her half still had to go through probate. The son also received a carryover basis (rather than a stepped-up basis) on the half gifted during her lifetime, creating unnecessary capital gains exposure down the road. The very outcome the mother was trying to avoid happened anyway.
This kind of error isn’t limited to non-attorneys. Marshall has seen it happen when couples relocate to Florida and continue using their out-of-state attorney for deed work. Legal terminology that works in one state can mean something entirely different under Florida law — and a deed drafted with the wrong language can send half a property into probate whether anyone intended it or not.
Don’t Let These Myths Cost Your Family
These five myths — that spouses automatically inherit everything, that estate planning is only for the rich, that a will avoids probate, that you’re too young to worry about it, and that joint ownership is a foolproof shortcut — are responsible for a staggering amount of preventable loss in Florida families every year.
The good news is that a well-designed estate plan doesn’t have to be expensive or complicated. It just has to be right for your situation — your assets, your family, your goals.
Attorney John Marshall and the team at Marshall Law have spent decades helping families in The Villages, Wildwood, Leesburg, Lady Lake, Fruitland Park, Minneola, Sumter County, and Lake County navigate estate planning, probate, and elder law with clarity and confidence.
Ready to make sure your plan actually does what you think it does?
Call Marshall Law at (352) 432-8859 or contact us online to get started today. Because the best time to get your estate plan right is before you need it.