If you own property in Florida, have children, or have any assets worth protecting, the question is not whether you need an estate plan — it is which documents are right for your situation. The most common question Florida residents ask is: should I have a trust, a will, or both?
The short answer: most Florida homeowners and families benefit from having both a revocable living trust and a pour-over will. Here is why — and when exceptions apply.
What Is a Revocable Living Trust?
A revocable living trust is a legal document you create during your lifetime that holds your assets for your benefit while you are alive and distributes them to your chosen beneficiaries at your death — without going through probate. As the grantor (creator), you typically serve as your own trustee and retain full control over your assets. You can amend, revoke, or modify the trust at any time.
Under the Florida Trust Code, F.S. Chapter 736, a revocable trust becomes irrevocable upon your death or incapacity, at which point your named successor trustee steps in to manage and distribute your estate according to your instructions.
What Is a Last Will and Testament in Florida?
A Florida will is a legal document that states how you want your assets distributed after death. To be valid, your will must be signed by you in the presence of two witnesses, both of whom must sign in your presence and each other's presence. A notarized self-proving affidavit (F.S. § 732.503) allows the will to be admitted to probate without witness testimony.
The critical distinction: a will does not avoid probate. It goes through probate. A will is a set of instructions to the probate court — it only takes effect after a judge oversees the process.
Florida Probate: The Hidden Cost of a Will-Only Plan
Florida probate is the court-supervised process for validating a will and distributing a deceased person's estate. Under F.S. § 733.6171, attorney fees in Florida probate are set by statute based on the gross estate value — not the net:
| Gross Estate Value | Statutory Attorney Fee | Plus Court & Filing Fees |
|---|---|---|
| $100,000 | $3,000 | $400–$800 |
| $300,000 | $7,500 | $500–$1,000 |
| $500,000 | $12,500 | $600–$1,200 |
| $750,000 | $18,250 | $700–$1,500 |
| $1,000,000 | $24,000 | $800–$2,000 |
Source: F.S. § 733.6171 — statutory percentage schedule for attorney fees in Florida formal administration.
Beyond cost, Florida probate is public — your assets, debts, and beneficiaries become court records anyone can search. Formal administration typically takes 6 to 18 months, during which your family may have limited access to your assets.
Trust vs. Will: Side-by-Side Comparison
| Feature | Revocable Living Trust | Last Will & Testament |
|---|---|---|
| Avoids probate? | Yes — assets pass directly | No — must go through probate |
| Public record? | No — completely private | Yes — court public record |
| Covers incapacity? | Yes — successor trustee steps in | No — only effective at death |
| Multi-state property? | Yes — avoids ancillary probate | No — separate probate in each state |
| Cost to administer | Low — no court fees | High — statutory attorney fees |
| Timeline at death | Days to weeks | 6–18 months |
| Names guardian for minor children? | No | Yes — required for guardianship |
| Requires funding? | Yes — assets must be retitled | No — automatic at death |
Why You Need Both: The Pour-Over Will
Even with a trust, you still need a will — specifically a pour-over will. This document catches any assets you forgot to transfer into your trust during your lifetime. At death, those assets "pour over" into the trust and distribute under its terms.
A will also serves one function a trust cannot: naming a guardian for your minor children (F.S. § 744.3021). If you have children under 18, a will is essential regardless of whether you have a trust.
When a Will Alone May Be Sufficient
A will without a trust may be adequate in limited circumstances:
- Your total estate is under $75,000 (qualifying for Florida summary administration under F.S. § 735.201)
- You have no real property in your name
- All significant assets pass by beneficiary designation (life insurance, retirement accounts, POD bank accounts)
- You have no minor children or special needs beneficiaries
Even in these cases, a trust may still be preferable for privacy and simplicity at death.
Florida-Specific Considerations
Snowbirds and Out-of-State Property
If you own real property in multiple states, a trust avoids the need for ancillary probate — a separate probate proceeding in each state where you own real property. Without a trust, your family may face probate in Florida, New York, and any other state where you own real estate simultaneously.
The Florida Elective Share
Under F.S. § 732.2065, a surviving spouse is entitled to 30% of the elective estate regardless of what the will says. The elective estate includes not just probate assets but also revocable trust assets, joint tenancy property, and certain transfers made within one year of death (F.S. § 732.2035). Any estate plan for a married person must address the elective share.
Documentary Stamp Tax on Trust Transfers
Transferring real property into a revocable trust is generally exempt from Florida documentary stamp tax if the grantor is also the trustee (F.S. § 201.02(1)). This makes the trust transfer cost-effective in Florida.
Frequently Asked Questions
Related Reading
- How Long Does Probate Take in Florida? — why a will alone still leaves your family in probate.
- Does Florida Have an Estate or Inheritance Tax? — the tax picture behind your planning choices.
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Start Your Florida Estate Plan →This article is for general informational purposes and does not constitute legal advice. Estate planning is highly fact-specific. Consult a licensed Florida estate planning attorney regarding your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida.