Trust vs. Will in Florida

One of the most common questions people ask when beginning the estate planning process is whether they need a trust, a will, or both. In Florida, this decision has significant practical consequences that affect how your assets are distributed, whether your estate goes through probate, how much your family pays in legal fees, and whether your financial affairs remain private. At the Law Offices of Albert Goodwin, PA, we help clients throughout South Florida evaluate these options and build estate plans that fit their specific circumstances. This page provides a comprehensive comparison of trusts and wills under Florida law to help you understand the differences.

What Is a Will in Florida?

A will, formally known as a last will and testament, is a legal document that directs how your assets should be distributed after your death. Under Florida Statutes § 732.502, a valid will in Florida must be in writing, signed by the testator (the person making the will) at the end, and signed in the presence of two attesting witnesses who also sign the will in each other's presence and in the presence of the testator. Florida does not recognize holographic (handwritten, unwitnessed) wills or oral wills.

A will names a personal representative (called an executor in some states) who is responsible for administering the estate through the Florida probate process. The will directs how the testator's probate assets should be distributed, and it can also name a guardian for minor children. However, a will only takes effect upon the testator's death and must be admitted to probate to be effective.

What Is a Trust in Florida?

A trust is a legal arrangement in which a grantor transfers assets to a trustee to hold and manage for the benefit of designated beneficiaries. The most common type of trust used in Florida estate planning is the revocable living trust, which allows the grantor to maintain full control over the trust assets during their lifetime and provides for the seamless management and distribution of those assets upon incapacity or death. For a full explanation of how a trust works in Florida, see our dedicated page on trust mechanics.

Unlike a will, a properly funded revocable trust avoids probate entirely. The trust takes effect immediately upon creation, operates during the grantor's lifetime, and continues to function after the grantor's death without any court involvement.

Probate Avoidance

The most significant practical difference between a trust and a will in Florida is probate. A will must go through the Florida probate process, which is a court-supervised proceeding governed by Florida Statutes Chapters 731 through 735. Probate in Florida involves filing the will with the circuit court, appointing a personal representative, inventorying assets, notifying creditors, paying debts and taxes, and distributing the remaining assets to the beneficiaries. Even a straightforward formal administration in Florida typically takes six months to a year or longer, and the estate cannot be fully distributed until the process is complete.

A revocable living trust, by contrast, avoids probate for all assets that are properly titled in the name of the trust. When the grantor dies, the successor trustee can begin administering the trust immediately without filing anything with the court. The trustee can access trust accounts, manage trust property, pay debts and expenses, and distribute assets to beneficiaries on a timeline determined by the trust document rather than by court procedures. This can result in significant time savings and reduced administrative costs.

Cost Comparison

The upfront cost of creating a revocable trust is typically higher than the cost of creating a will. A comprehensive trust-based estate plan includes the trust agreement, a pour-over will, a durable power of attorney, a health care surrogate designation, and a living will, along with the work involved in properly funding the trust. A will-based plan is generally simpler and less expensive to prepare.

However, the total lifetime cost of estate administration often favors the trust. Florida Statutes § 733.6171 provides that attorney fees in probate proceedings are presumed reasonable if they are based on a percentage of the estate's value: 3% of the first $1 million, 2.5% of the next $4 million, 2% of the next $5 million, and 1.5% on values exceeding $10 million. The personal representative is entitled to a similar fee under § 733.617. For a $1 million probate estate, attorney fees alone could be $30,000, plus a similar amount for the personal representative. Trust administration, while not free, is typically far less expensive because there are no statutory fee schedules and no court filing fees.

Privacy

A will becomes a public record once it is filed with the probate court. Anyone can access the probate file and review the will, the inventory of assets, the list of creditors, and other documents filed in the proceeding. This means that the details of your estate, including what you owned and who received it, become publicly available information.

A trust, by contrast, is a private document. The trust agreement is not filed with any court or government agency, and the details of the trust administration are not part of any public record. The trustee's communications with beneficiaries are private. This privacy can be particularly important for high-net-worth individuals, public figures, business owners, and anyone who values keeping their financial affairs confidential.

Incapacity Planning

One of the most important advantages of a trust over a will is incapacity planning. A will has no effect until the testator dies. If the testator becomes incapacitated during their lifetime, the will provides no mechanism for managing their assets. In that situation, the family may need to petition the court for a guardianship proceeding under Florida Statutes Chapter 744, which is expensive, time-consuming, invasive, and subject to ongoing court oversight.

A revocable living trust includes built-in incapacity planning. The trust document typically provides that if the grantor becomes incapacitated, the successor trustee steps in to manage the trust assets without any court involvement. The trust can define what constitutes incapacity, specify who makes that determination (usually one or two physicians), and give the successor trustee broad authority to manage investments, pay bills, handle tax matters, and make distributions for the grantor's care. This seamless transition of management is one of the most valuable features of a trust-based estate plan.

Multi-State Property

If you own real property in more than one state, the probate implications are significant. When a person dies owning real property in a state other than their state of domicile, the estate must go through ancillary probate in each state where real property is located, in addition to the primary probate proceeding in the decedent's home state. Each ancillary probate requires hiring local counsel, filing petitions with the local court, and complying with that state's probate procedures. This multiplies the cost, complexity, and time required to settle the estate.

A revocable living trust avoids this problem entirely. Because the trust, not the individual, owns the real property, there is no change in ownership at the grantor's death that would trigger probate in any state. The successor trustee can manage and distribute trust-owned real property in any state without ancillary probate proceedings. For Florida residents who own vacation homes, rental properties, or other real estate in other states, this is often one of the strongest reasons to create a trust.

Creditor Claims

Both wills and trusts are subject to creditor claims after the grantor's death, but the process differs. In probate, the personal representative publishes a notice to creditors in a local newspaper, and creditors have three months from the date of the first publication to file their claims under Florida Statutes § 733.702. Known or reasonably ascertainable creditors must also be given actual notice, and they have 30 days from receipt of that notice (or three months from first publication, whichever is later) to file their claims.

For revocable trusts, Florida Statutes § 736.05055 provides a parallel creditor notice procedure. The trustee may publish a notice to creditors, and creditors have the same time frames to file their claims. Some practitioners recommend opening a small probate proceeding (sometimes called a "pour-over" probate) even when a trust is the primary estate planning vehicle, specifically to take advantage of the probate creditor notice provisions, which are more well-established and offer a clearer cutoff for creditor claims.

Flexibility and Control Over Distributions

Both trusts and wills allow you to specify how your assets should be distributed, but trusts offer significantly greater flexibility and control. A will can direct that assets be distributed outright to named beneficiaries, or it can establish testamentary trusts that hold assets for the benefit of certain beneficiaries. However, testamentary trusts are created through the probate process and are subject to ongoing court supervision in some cases.

A revocable living trust can include detailed instructions for distribution that take effect without any court involvement. For example, the trust can provide that a beneficiary's share is held in a continuing trust and distributed in stages at certain ages, or distributed only for specified purposes, or managed by a trustee with discretion to make distributions based on the beneficiary's needs. This is particularly valuable for families with minor children, beneficiaries with special needs, beneficiaries who may not be financially responsible, or blended family situations where the grantor wants to provide for a surviving spouse while preserving assets for children from a prior marriage.

Contesting a Will vs. Contesting a Trust

Both wills and trusts can be contested, but the procedures and practical dynamics differ. A will contest is filed in the probate court and is governed by Florida Statutes § 733.109. Common grounds for contesting a will include lack of testamentary capacity, undue influence, fraud, and improper execution. Will contests are public proceedings, and the contested will remains in the court file for anyone to review.

A trust contest is brought under the Florida Trust Code and may be filed in circuit court. The same substantive grounds apply, including lack of capacity and undue influence. However, because trusts are private documents and trust administration is not court-supervised, trust contests can be more difficult for potential challengers to initiate. The challenger may have less information about the trust terms and the trust assets, and the trust may include a no-contest (in terrorem) clause that discourages challenges by reducing or eliminating the challenger's share if their challenge is unsuccessful.

When a Will Is Sufficient

A will may be sufficient for individuals with relatively simple estates, modest asset values, property located only in Florida, no concerns about incapacity planning, and no need for ongoing trust management after death. Young individuals without significant assets, people whose primary assets pass through beneficiary designations (such as life insurance and retirement accounts), and those who are comfortable with the probate process may find that a well-drafted will meets their needs.

When a Trust Is the Better Choice

A trust is generally the better choice for Florida residents who own real property (particularly in multiple states), have estates that exceed the threshold for formal administration, want to avoid the cost and delay of probate, value privacy, want built-in incapacity planning, have minor children or beneficiaries who need asset management, have blended family situations, or want greater control over how and when beneficiaries receive their inheritances.

Do You Need Both a Trust and a Will?

In most trust-based estate plans, the answer is yes. Even when a revocable trust is the primary estate planning vehicle, a pour-over will is typically included as a safety net. A pour-over will provides that any assets not titled in the name of the trust at the time of death are "poured over" into the trust and distributed according to the trust terms. This ensures that any assets inadvertently left out of the trust are still distributed according to the grantor's wishes, although those assets will go through probate before being transferred to the trust. The pour-over will also serves as the vehicle for naming a guardian for minor children, which can only be done through a will.

Contact a Florida Estate Planning Attorney

Choosing between a trust and a will is one of the most important decisions in estate planning, and the right answer depends on your specific situation. At the Law Offices of Albert Goodwin, PA, we take the time to understand your goals, your family, and your assets before recommending a plan. We serve clients throughout Miami-Dade County, Broward County, and Palm Beach County from our office at 121 Alhambra Plz #1000, Coral Gables, FL 33134. Call us at 786-522-1411 or email [email protected] to schedule a consultation and find out which estate planning tools are right for you.