My Parents Don’t Have a Will. What Can I Do?

Can I Make a Will for My Parent?

A child cannot make a will for a parent in Florida, and neither can anyone holding the parent’s power of attorney. Florida law lets a person make a will only if that person is of sound mind and at least 18. The parent signs at the end in front of two witnesses, who sign in front of the parent and each other. Florida allows someone else to write the parent’s name on the will only in the parent’s presence and at the parent’s direction, which keeps every decision with the parent. The power of attorney statute goes further and says outright that an agent may not sign or revoke a will for the person who appointed the agent.

The same rule holds for the power of attorney and the health care surrogate. Your parent signs a power of attorney in front of two witnesses and a notary, and signs a health care surrogate designation in front of two adult witnesses, at least one of whom is neither the parent’s spouse nor a blood relative. A child can find the lawyer, book the call and drive Mom to the signing. A child cannot choose the terms.

The parent is the client, even when the child pays. Florida’s ethics rules allow a lawyer to accept a child’s payment only with the parent’s informed consent, with no direction from the child over the lawyer’s judgment, and with the parent’s information kept confidential. I meet the parent alone for part of every meeting. A parent who wants to tell the children what the will says can, and a parent who wants to keep it private can do that too.

Practice pointer. A son who picks the lawyer, gives the instructions, sits in on the signing and keeps the original has done everything a sibling’s lawyer will list when challenging the will. Make the introduction, then let your parent have the conversation.

What Happens if My Parents Die Without a Will in Florida?

When a parent dies without a will, Florida law writes the will for the family, in a fixed order that starts with the spouse and the descendants. The full chart is on our page about who inherits in Florida without a will. Two outcomes surprise families more than any other.

The first is the blended-family rule. A surviving spouse takes the whole probate estate only when every child of the parent who died is also the spouse’s child and the spouse has no children from anyone else. If Dad has a son from his first marriage, or his second wife has a daughter from hers, the wife takes half and Dad’s descendants share the other half. A second wife who assumed she would keep everything and a son who assumed he would get nothing are both wrong, and that gap is where families stop speaking.

The second is the house. When a parent dies without a will, survived by a spouse and children, and the home was the parent’s homestead, the spouse takes a life estate (the right to live in the house for the rest of her life) and the children own the house after her. The spouse can instead elect, within 6 months of the death, to own half the house as a co-owner with the children. A widow who wants to sell needs the children’s signatures either way. An unmarried partner of twenty years, by contrast, inherits nothing at all under these rules.

Accounts with a named beneficiary, and accounts or property held jointly with a right of survivorship, pass outside these rules. A parent whose house and accounts are all titled that way may leave very little for the rules to govern, which is why I read the titles and beneficiary forms before I talk about a will. The court process for whatever remains is explained on our Florida probate page, and the probate cost calculator estimates what it costs.

What Happens if Mom or Dad Loses Capacity First?

A missing power of attorney causes more trouble than a missing will, because the trouble starts while your parent is alive. Without one, nobody has legal authority to sign your parent’s checks, talk to the bank, renew the insurance, sell the car or deal with the Social Security office. Being the oldest child, or the child on the joint account, does not give you that authority.

When capacity is gone and no power of attorney exists, the route left is guardianship. Guardianship is a court case in which a judge decides whether your parent can manage their own affairs, appoints a guardian, and supervises that guardian for as long as the guardianship lasts, with reports filed in court. Our page on guardianship versus a power of attorney in Florida walks through the difference. The short version is that a power of attorney lets your parent choose the person, and guardianship lets the judge choose.

Medical decisions follow a separate path. Without a designated health care surrogate, Florida law gives the decision to a court-appointed guardian if one exists, then the spouse, then the adult children. With more than one adult child, a majority of the children reasonably available decides. Three siblings in three time zones, one of them unreachable, is the situation a health care surrogate designation exists to prevent.

How Do I Bring It Up Without a Fight?

Start with the next hospital stay rather than with the inheritance. A parent hears “who gets the house” as a question about the parent’s death and the child’s share. The same parent hears “if you were in the hospital for a week, who would pay the electric bill” as a practical question, and parents answer practical questions. The power of attorney and the health care surrogate are the documents for that week, and the will can follow in the same appointment.

Parents object for a handful of reasons, and each one has a straight answer.

1. “It costs too much.” A simple will is a flat fee from $299, and the Secure Will Estate Plan, with the will, the power of attorney, the health care documents and a lady bird deed on the house, is a flat fee from $1,200. Offering to pay is allowed when your parent agrees, and your parent remains the client.
2. “I’m not dying.” Most of the plan is for a living parent. The power of attorney, the health care surrogate and the living will exist for the stroke, the fall or the surgery that goes badly, and none of them does anything after death.
3. “I don’t want to give up control.” A will can be changed as long as your parent has capacity. A lady bird deed leaves your parent free to sell, mortgage or change the plan for the house without asking the children. A power of attorney names the person your parent trusts, and your parent can name two people to act together, or a backup if the first cannot serve.
4. “You just want the money.” Say plainly that you are not asking to see the will. The lawyer meets your parent alone, and the will can stay private. Some parents relax once they hear that the child arranging the meeting will not be in the room.
5. “I don’t trust your brother with this.” Your parent does not have to name the child who raised the subject, or any child. A parent can pick one agent, two co-agents, a successor, or a person outside the family, and naming the agent is the whole point of signing the document.

Two practical steps make the conversation easier. Bring the subject up once, at a calm time, and leave it, rather than raising it at every visit. And make the appointment easy, because the consult is by phone or Zoom and your parent can take it from the kitchen table.

My Dad Refuses. What Now?

A parent who has capacity has the right to refuse, and the refusal stands. A will signed because a child pushed is the will a sibling’s lawyer challenges, and Florida courts presume undue influence when a beneficiary in a position of trust was active in getting the will made. Pushing harder makes the eventual document weaker.

What you can do is ask for less. A parent who will not discuss a will will often sign a durable power of attorney and a health care surrogate designation, because neither one says anything about who inherits. Those two documents keep the family out of guardianship court, which is the more expensive of the two problems. Our page on how to get power of attorney for a parent walks through those steps.

If your parent still refuses, write down where the accounts, the deed, the insurance policies and the passwords are, with your parent’s help if possible. A child who knows where everything sits spares the family the search that slows down every estate, and the checklist for aging parents lists what to gather. Then let the subject rest until your parent raises it.

What If Mom Already Has Dementia?

A dementia diagnosis does not by itself end your mother’s right to sign. Florida asks whether she understands the document on the day she signs, and many people in the early stages still can. The bar for a power of attorney sits higher than the bar for a will, so the power of attorney is the document to sign first, while both are still possible.

Move quickly once memory loss shows. Ask the treating doctor for a recent note on your mother’s ability to understand decisions, book the consult that week, and expect the lawyer to talk with your mother alone to judge her understanding firsthand. If the lawyer cannot confirm capacity, the document should not be signed, because a document signed without capacity is worse than none. Our page on power of attorney for a parent with dementia covers the capacity standard and what happens when the window has closed.

Which Documents Protect Most Families?

Most parents need three documents and, if they own a home, one deed.

1. A will, which names who inherits and who handles the estate. The flat fee is from $299, and our Florida wills page explains the options.
2. A durable power of attorney, which names who handles money and property if your parent cannot. The flat fee is from $350, and our Florida power of attorney page explains the powers it should carry.
3. A health care surrogate designation, living will and HIPAA release, which name who makes medical decisions, record your parent’s wishes at the end of life, and let the surrogate see the records. The flat fee is from $350 per person, and our Florida advance directives page explains each one.
4. A lady bird deed on the home, which passes the house to the people your parent names without probate, while your parent keeps full control for life. The flat fee is from $399, or $449 for a couple, and our Florida lady bird deed page explains how it works.

The Secure Will Estate Plan packages all of them. Bought separately, the will, the power of attorney, the health care documents and the lady bird deed come to $1,398. The plan is a flat fee from $1,200, or $1,950 for a couple, and adds a review of beneficiary designations, a homestead check, and a guided signing that meets Florida’s formalities. A parent with larger assets, a business or a child who needs protection may need a revocable living trust instead, and I say so at the consult when that is true.

Can You Meet My Parents by Video if I Live Out of State?

The consult can happen by phone or Zoom with your parent in Florida and you in another state. You can join the first call to explain the family situation, and then I speak with your parent alone.

The signing follows one rule that matters for older parents. Florida allows a notary to act online, but Florida’s online notary rules make a witness on video ineffective when the signer is a vulnerable adult, and the screening questions the online notary must ask include whether the signer needs help with daily care. A power of attorney signed by a Florida resident with a witness who is not physically present also loses the seven powers that must be initialed separately, including gifts and beneficiary changes. For an older parent I therefore plan the signing with two witnesses and a notary physically in the room, near your parent’s home, and you do not need to fly in for it. The details are on our page about whether a power of attorney needs to be notarized in Florida.

What It Costs

Government costs, including recording fees, are additional and passed through at cost. Posted fees are honored for 90 days from the posted date. The full schedule is on our pricing page, and the will options are compared on how much a will costs in Florida.

Frequently Asked Questions

Common Situations

The stories below are hypothetical composites, not real clients.

The father in his second marriage. A 78-year-old in Sarasota has a daughter from his first marriage and has been married to his second wife for fifteen years. Everything is in his name alone, and he tells his daughter the wife “will take care of it.” Without a will, his wife would take half the estate and a life estate in the house, and his daughter would co-own the home with a stepmother she rarely speaks to. He takes the consult alone, signs a will and a lady bird deed that reflect what he actually wants, and names his wife as health care surrogate with his daughter as the alternate.

The mother who said no. A widow in Palm Beach County refuses to discuss a will with her son, who lives in Ohio. He stops asking about the will and asks one question instead, about who would pay her bills if she were in the hospital. She books the call herself, signs a durable power of attorney and a health care surrogate designation, and decides on the will a few months later.

Sources of Law

• Fla. Stat. §732.102 (spouse’s intestate share; one-half where the decedent or the spouse has descendants outside the marriage); §732.103 (share of other heirs); §732.401(1) to (2) (homestead descends as a life estate to the spouse with remainder to descendants; election of a one-half tenancy in common within 6 months); §732.501 (sound mind and 18 years of age); §732.502(1) (signature at the end, or by another in the testator’s presence and by the testator’s direction; two attesting witnesses). Text verified against the in-repo transcription of chapter 732, retrieved October 16, 2026.
• Fla. Stat. ch. 709, §709.2105(1) to (2) (agent qualifications; principal signs before two subscribing witnesses and acknowledges before a notary); §709.2111(1) to (2) (co-agents and successor agents); §709.2201(3)(d) (an agent may not execute or revoke a will for the principal); §709.2202(6) (remote witness and the separately initialed powers). Retrieved October 16, 2026.
• Fla. Stat. §117.285 (online witnessing; a witness present by audio-video communication is not effective for a principal who is a vulnerable adult; screening questions). Retrieved October 16, 2026.
• Fla. Stat. §765.202(1) to (2) (health care surrogate designation signed before two adult witnesses, at least one neither spouse nor blood relative); §765.401(1) (proxy order where no surrogate exists; a majority of the adult children reasonably available). Retrieved October 16, 2026.
• Fla. Stat. ch. 744 (guardianship), summarized on our guardianship comparison page.
• In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) (presumption of undue influence where a substantial beneficiary in a confidential relationship was active in procuring the will). Described from later Florida opinions applying it, including Kunce v. Robinson, 469 So. 2d 874 (Fla. 3d DCA 1985).
• R. Regulating Fla. Bar 4-1.8(f) (compensation from someone other than the client only with the client’s informed consent, no interference with the lawyer’s independent judgment, and confidentiality preserved).
• The cases cited are published opinions in other parties’ matters, not matters handled by this firm, and they predict nothing about any reader’s case.

What I Tell the Son or Daughter Who Calls First

A son or daughter usually makes the first call about a parent with no will, and the parent has to make every decision after that. In 14 years of law practice I have also litigated probate and trust disputes in court, which is where a will that a child arranged from start to finish ends up being read line by line. Having watched how those documents are attacked, I have a few take-home points.

A common question I hear is, “Mom is in the hospital, so can I sign it for her?” My answer is no, and I explain that the signature is the least of it, because the decisions inside the document have to be hers.

The first is who is in the room. I meet the parent alone for part of every meeting, and I ask the parent, not the child, what the parent wants. A will that reflects the parent’s own words, said to me without the children present, is far harder for a sibling to attack later.

The second is timing. Capacity is judged on the day of signing. A parent who is sharp in March can be unable to sign by September, and a diagnosis is the right moment to call, provided the appointment is booked that week.

The third is the house. For most Florida parents the home is the largest asset, and a lady bird deed passes it without probate while the parent keeps full control (including the right to sell it without asking the children). That deed is part of the Secure Will Estate Plan for that reason.

Avoid printing a will form, filling it in for your parent and bringing it over to sign. A form a child completed is the clearest evidence a challenger can find that the child procured the will. My honest limit is that I cannot make a parent sign anything, and when a parent with capacity tells me no, that answer is the parent’s to give.

Updated on October 16, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law and our posted fees, not legal advice, and no prediction of any outcome. Past results do not guarantee a similar outcome. No attorney-client relationship is created by reading this page. Do not send confidential information until we have agreed to represent you.