Will vs. Trust in Miami, Florida

One of the most common questions in Florida estate planning is whether you need a will, a trust, or both. While both documents allow you to direct how your assets are distributed after your death, they work in fundamentally different ways and offer different advantages. At the Law Offices of Albert Goodwin, PA, we help individuals and families throughout South Florida choose the right estate planning tools based on their assets, family circumstances, and goals.

What Is a Will in Florida?

A will is a legal document that directs how your assets will be distributed after your death. In Florida, the requirements for a valid will are set out in Florida Statutes § 732.502. The will must be in writing, signed by the testator (or by another person at the testator's direction and in the testator's presence), and signed in the presence of at least two attesting witnesses who also sign in the presence of each other and in the presence of the testator. Florida does not recognize holographic (handwritten, unwitnessed) wills executed in Florida, although it may recognize holographic wills validly executed in other states under § 732.502(2).

A will allows you to name a personal representative to administer your estate, designate guardians for minor children, specify how debts and taxes should be paid, and distribute your assets to named beneficiaries. However, a will does not take effect until after your death, and it must go through probate before your wishes can be carried out.

What Is a Trust in Florida?

A trust is a legal arrangement in which a grantor transfers assets to a trustee, who holds and manages those assets for the benefit of designated beneficiaries according to the terms set forth in the trust document. Florida trust law is governed primarily by the Florida Trust Code, found in Florida Statutes Chapter 736.

The most common type of trust used in estate planning is a revocable living trust. With a revocable trust, the grantor typically serves as both the trustee and the primary beneficiary during their lifetime, retaining full control over the trust assets. Upon the grantor's death or incapacity, a successor trustee takes over management and distributes the assets according to the trust terms, without the need for probate court involvement.

Probate Avoidance: The Major Difference

The single biggest practical difference between a will and a trust is how assets pass to beneficiaries after death. Assets distributed through a will must go through Florida probate, which is a court-supervised process governed by Florida Statutes Chapters 731 through 735. Probate in Florida can take anywhere from several months to over a year, depending on the size and complexity of the estate, whether there are disputes among beneficiaries, and whether creditors file claims against the estate.

Florida has two main forms of probate: formal administration under F.S. § 733.103 for estates exceeding $75,000 in non-exempt assets (or when the decedent has been dead for less than two years), and summary administration under F.S. § 735.201 for smaller estates valued at $75,000 or less (excluding exempt homestead property) or when the decedent has been dead for more than two years. Even summary administration requires a court petition and involves delays.

Assets held in a properly funded revocable trust pass outside of probate entirely. When the grantor dies, the successor trustee can distribute assets to beneficiaries according to the trust terms without any court involvement. This means faster access to assets, lower administrative costs, and far less paperwork.

Privacy: Wills Are Public, Trusts Are Private

When a will is admitted to probate in Florida, it becomes a public court record. Anyone can go to the clerk of the circuit court and view the will, the inventory of estate assets, creditor claims, and other probate filings. This means that the details of your estate, including what you owned and who you left it to, become available to the public.

A trust, by contrast, is a private document. It is not filed with any court or government agency during the grantor's lifetime or after death (unless a dispute arises that requires court intervention). The trust administration occurs privately between the trustee and the beneficiaries. For individuals who value confidentiality regarding their assets and estate plan, a trust offers a significant advantage over a will.

Cost Differences: Upfront vs. Overall

A common concern is that trusts cost more than wills. It is true that the upfront cost of establishing a revocable living trust is typically higher than the cost of drafting a simple will. A comprehensive trust-based estate plan includes not only the trust document itself but also a pour-over will, durable power of attorney, health care surrogate designation, and the critical step of funding the trust by retitling assets into the trust's name.

However, the overall cost comparison often favors the trust. Florida probate involves court filing fees, potential bond costs, attorney fees, and personal representative fees. Under F.S. § 733.6171, attorney fees in probate are deemed reasonable if they are based on the compensable value of the estate: $1,500 for the first $40,000, $750 for each additional $20,000 up to $100,000, $1,500 for each additional $100,000 up to $1 million, and so on. Personal representative fees follow a similar schedule under § 733.617. For a $500,000 estate going through formal probate administration, combined attorney and personal representative fees alone can easily exceed $20,000. A trust avoids these costs entirely.

Incapacity Planning

A will only takes effect at death. It provides no protection or mechanism for managing your affairs if you become incapacitated during your lifetime. If you have only a will and become unable to manage your finances due to illness or injury, your family may need to file a guardianship proceeding in Florida court under Florida Statutes Chapter 744 to gain authority over your assets. Guardianship is expensive, time-consuming, and involves ongoing court supervision.

A revocable living trust includes built-in incapacity planning. If the grantor becomes incapacitated, the successor trustee named in the trust can immediately step in to manage the trust assets without any court involvement. This provides a seamless transition of financial management and avoids the cost and burden of guardianship proceedings.

When a Will Is Sufficient

Not every Florida resident needs a trust. A will may be the right choice if you have a relatively modest estate, few assets, no real estate outside of Florida, no concerns about privacy, and no complex family dynamics such as blended families or beneficiaries with special needs. A will is also the only way to name a guardian for minor children, which is why even individuals with trusts should also have a will.

Additionally, certain assets pass outside of both wills and trusts through beneficiary designations, including life insurance policies, retirement accounts (IRAs, 401(k)s), payable-on-death bank accounts, and transfer-on-death brokerage accounts. If the bulk of your assets pass through these designations, a simple will may be adequate to cover any remaining assets.

When a Trust Is the Better Choice

A trust is generally the better choice in Florida if you own real property (particularly if you own property in multiple states, as a trust avoids the need for ancillary probate in each state), if you have a larger estate, if you have minor children or beneficiaries who should not receive their inheritance outright, if you have a blended family with children from different relationships, if you want to protect assets from a beneficiary's creditors or divorce proceedings, or if privacy is important to you.

A trust also provides greater flexibility in how and when assets are distributed. You can direct that assets be held in trust for a beneficiary until they reach a certain age, that distributions be made for specific purposes like education or health care, or that assets be protected from a beneficiary's creditors through spendthrift provisions under F.S. § 736.0502.

Florida Homestead and Estate Planning

Florida's homestead laws add complexity to the will-versus-trust decision. Under Article X, Section 4 of the Florida Constitution, homestead property is subject to restrictions on devise. If the homestead owner is survived by a spouse or minor children, the property cannot be freely devised by will. Instead, the surviving spouse has the option of a life estate in the property (with the remainder going to the decedent's descendants) or an undivided one-half interest in the property as a tenant in common under F.S. § 732.401. These restrictions apply regardless of what the will says.

Proper estate planning with a trust must account for these homestead restrictions. A revocable trust can hold homestead property, but the trust provisions must comply with Florida's homestead devise restrictions, or the transfer of homestead into the trust must be structured correctly to preserve the homestead exemption and comply with constitutional requirements.

Using a Will and Trust Together

In most comprehensive Florida estate plans, a will and a trust work together. The trust serves as the primary vehicle for holding and distributing assets, while a pour-over will acts as a safety net to catch any assets that were not transferred into the trust during the grantor's lifetime. The pour-over will directs that any remaining probate assets be transferred into the trust at death, ensuring that all assets are ultimately distributed according to the trust terms.

The will also serves the important function of nominating a guardian for minor children, which cannot be done through a trust. Every parent with minor children should have a will that names a guardian, even if the rest of their estate plan is trust-based.

Contact a Florida Estate Planning Attorney

Choosing between a will and a trust is one of the most important estate planning decisions you will make. The right choice depends on your assets, your family situation, and your goals. At the Law Offices of Albert Goodwin, PA, located at 121 Alhambra Plz #1000, Coral Gables, FL 33134, we help clients throughout South Florida create estate plans tailored to their specific needs. Call us at 786-522-1411 or email us at [email protected] to schedule a consultation and determine whether a will, a trust, or both is the right approach for your estate plan.