The question we hear most often from estate-planning clients is whether they need a living trust or whether a will is enough. The honest answer is that it depends on what the estate looks like and what the client is trying to accomplish. A living trust is a powerful tool, but it is not automatically the right tool for every Florida family.
This post compares the two under Florida law and identifies the situations where each one makes sense.
What a Florida will does
A Florida will, formally called a “last will and testament,” is a document executed under Fla. Stat. § 732.502 that directs the distribution of the testator’s assets after death. It becomes effective only when the testator dies, and it works through the probate process.
A Florida will requires:
- A writing signed by the testator at the end
- Two witnesses who see the testator sign (or acknowledge the signature)
- The witnesses sign in the presence of each other and the testator
Florida does not recognize holographic (handwritten, unwitnessed) wills or oral (nuncupative) wills executed by Florida residents, even if they would be valid in another state.
What probate looks like in Florida
Probate is the court-supervised process of administering a decedent’s estate. Florida offers several forms:
- Formal administration. The standard probate. Typically 6–12 months, with multiple court filings, attorney fees (often set by statute), and public notice to creditors.
- Summary administration. Available when the estate is valued under $75,000 or the decedent has been deceased more than two years. Faster and simpler, but not always available.
- Disposition without administration. Only for estates with no non-exempt assets beyond funeral and final medical costs. Limited use.
A will directs the court who should serve as personal representative and how the assets should be distributed, but it does not avoid probate.
What a Florida revocable living trust does
A revocable living trust is a separate legal entity created during the settlor’s lifetime. The settlor transfers title to assets into the trust, names themselves as initial trustee, and designates a successor trustee to take over upon the settlor’s death or incapacity.
Because the trust, not the settlor personally, owns the assets, those assets do not pass through probate. When the settlor dies, the successor trustee distributes them under the terms of the trust without a court proceeding.
Key features:
- Fully revocable during the settlor’s lifetime (can be changed or terminated)
- Settlor retains control (typically the settlor is also the initial trustee and beneficiary during life)
- No tax advantages during life. The IRS treats a revocable trust as transparent to the settlor.
- Privacy: trusts are not filed with the court, so distributions are not public record
The “pour-over” will
Almost every living trust is paired with a short pour-over will. This is a backup document that directs any assets not retitled into the trust to “pour over” into the trust at death. It does not eliminate probate for those assets, but it ensures they end up governed by the trust’s distribution terms.
A pour-over will is a safety net for assets the settlor forgot to fund into the trust. If the trust is properly funded during the settlor’s lifetime, the pour-over will may never need to be used.
When a will alone is often enough
- Small Florida estates where the primary asset is homestead property passing to a spouse or descendants (Florida’s homestead protections already pass the home outside of probate in most cases)
- Estates where all assets pass through non-probate mechanisms such as joint ownership with right of survivorship, payable-on-death accounts, retirement-account beneficiary designations, life insurance, and Florida’s “enhanced life estate” or “Lady Bird” deed
- Clients who value simplicity and are comfortable with the probate process as a backstop
When a living trust is usually better
- Estates over the summary-administration threshold with assets that would otherwise require formal probate
- Multi-state real estate ownership. A Florida property owner with a vacation home in another state can avoid two separate probates by funding both properties into a single trust.
- Clients with privacy concerns. A living trust keeps the distributions off the public record.
- Blended families or complex distributions. A trust can control how and when assets pass (for example, to a child in stages at specified ages rather than as a lump sum at 18).
- Incapacity planning. A funded trust makes it easy for a successor trustee to step in if the settlor becomes incapacitated, without the expense and court involvement of a guardianship.
- Out-of-state beneficiaries. Simpler distribution when the heirs do not live in Florida.
What the trust does not do
A living trust is not a tax-avoidance tool for most families. Federal estate-tax exemptions are well above the asset levels of most Florida estates, and Florida has no state estate tax. A trust also does not insulate assets from the settlor’s creditors during life. That requires different planning tools.
A trust also only works if it is funded. A trust with a signed declaration but no retitled assets is a piece of paper. The retitling of bank accounts, real estate, brokerage accounts, and beneficiary designations is where most of the work happens.
Starting the conversation
Estate planning is one of the matters where the first meeting matters most. A 30-minute consultation with one of the partners lets us see the shape of your estate, understand your goals, and identify whether a will, a living trust, or a combination is the right fit. Call 813-962-3176 or schedule a consultation.
