Florida Revocable Living Trust vs. Will
Fla. Stat. Ch. 736 (Florida Trust Code); Fla. Stat. Ch. 732 (wills)
The Florida revocable trust and the Florida will are the two primary tools for organizing what happens to your property at death. They are complementary, not interchangeable. Choosing between them — or using both together — depends on your assets, your family, your privacy preferences, and your incapacity-planning goals.
What it is
A Florida revocable living trust is a written agreement governed by Chapter 736 of the Florida Statutes (the Florida Trust Code). You create the trust during your life, transfer assets into it, and continue to control those assets as the initial trustee. The trust document specifies who manages and receives the assets if you become incapacitated, and who receives them after your death.
A Florida will, by contrast, is a document executed under Chapter 732 that takes effect only at death. It nominates a Personal Representative, names beneficiaries, and provides instructions for distribution — but it has no operative effect until the will is admitted to probate after you die.
Both documents reflect your wishes. The functional differences come down to (1) probate avoidance — assets in a properly funded trust generally avoid probate, while assets passing by will do not; (2) incapacity planning — a trust includes succession of management if you become incapacitated, a will does not; (3) privacy — a will admitted to probate becomes public record, while a trust generally stays private; and (4) cost and complexity — trusts cost more to draft and require ongoing funding, while wills are simpler and cheaper to create.
Most well-designed Florida estate plans use both tools. The revocable trust holds the main assets — real estate, brokerage accounts, business interests — and the will (called a "pour-over will") covers anything inadvertently left out by directing it into the trust at death.
When to Use a Florida Revocable Trust
A revocable trust is the right primary tool when:
- You own Florida real estate plus assets in one or more other states — a trust avoids ancillary probate in each state.
- Privacy is important — the trust terms stay confidential, while a probated will is public record.
- You want a clean plan for incapacity — the successor trustee can take over management without going to court for a guardianship.
- You have minor children, beneficiaries with special needs, or beneficiaries who shouldn't receive outright distributions — the trust can continue holding and managing assets after your death.
- You want to avoid the cost, delay, and procedural friction of Florida probate for your beneficiaries.
- You have a complex family structure — blended family, adult children with different financial circumstances, charitable goals — where ongoing post-death control matters.
A revocable trust is less essential — a will alone may suffice — when the estate is small, the assets are straightforward, the beneficiaries are simple, and the time-and-cost trade-off for trust drafting and funding is not justified.
Florida Revocable Trust vs. Florida Will
| Aspect | Florida Revocable Living Trust vs. Will | Florida Will |
|---|---|---|
| Governing statute | Fla. Stat. Ch. 736 | Fla. Stat. Ch. 732 (and Ch. 733 for probate) |
| Takes effect | Upon execution (during life) | Upon death (after probate) |
| Avoids probate | Yes — for assets titled to the trust | No — will is the instrument of probate |
| Public record at death | Generally no | Yes — once admitted to probate |
| Incapacity planning | Yes — successor trustee steps in | No — separate POA needed |
| Ancillary probate in other states | Avoided | May be required for out-of-state property |
| Drafting cost | Higher | Lower |
| Ongoing funding required | Yes — assets must be titled to the trust | No — will operates regardless |
| Post-death control of distributions | Yes — trustee continues per trust terms | Limited — Personal Representative distributes and closes |
Designing a Florida Estate Plan
Most Florida estate plans benefit from a coordinated suite of documents rather than a single instrument in isolation. A typical Florida estate plan includes:
- Revocable Living Trust — drafted under Fla. Stat. Ch. 736; holds primary assets and provides for incapacity and post-death management.
- Pour-Over Will — short backup will that names a Personal Representative and directs any assets inadvertently outside the trust into the trust at death.
- Durable Power of Attorney — financial decision-making authority during life if you can't act for yourself (Fla. Stat. Ch. 709, Part II).
- Designation of Health Care Surrogate — medical decision-making authority (Fla. Stat. § 765.202).
- Living Will — end-of-life directive (Fla. Stat. § 765.302).
- HIPAA Authorization — allows medical information sharing with named individuals.
- Trust funding — once the trust is signed, assets must actually be retitled into the trust's name. Real estate by deed, brokerage accounts by retitling, business interests by transfer documents. An unfunded trust does not avoid probate.
- Beneficiary designations — review and align retirement accounts, life insurance, and annuities. These pass by designation regardless of will or trust.
Why work with an attorney
The technical drafting of Florida wills and trusts is significantly affected by recent statutory updates — including the Florida Trust Code (Ch. 736) and the Florida Probate Code (Ch. 732, 733), the homestead descent rules, and the electronic-execution provisions added by Fla. Stat. § 732.522 in 2020. Online template forms regularly fail to address Florida-specific issues like homestead, the elective share, the family allowance, and the rule against perpetuities. The cost of competent drafting is modest relative to the cost of fixing a defective plan later — usually in litigation.
Frequently Asked Questions
Does a Florida revocable trust avoid probate?
Yes — for assets titled to the trust. The trust does not avoid probate by being signed; the assets must actually be transferred into the trust's name. Real estate is conveyed by deed, financial accounts are retitled, business interests are assigned. Anything left in the individual's name at death still goes through probate.
Do I still need a will if I have a Florida revocable trust?
Yes. A "pour-over" will is the standard companion to a Florida revocable trust. It catches any asset inadvertently left outside the trust and directs it into the trust at death. The pour-over will also nominates a Personal Representative and, if applicable, a guardian for minor children — functions that the trust cannot perform.
Is a Florida revocable trust good for tax planning?
A revocable trust by itself does not save income tax or estate tax. Trust income is reported on the grantor's individual return during life. Estate tax planning — for estates above the federal exemption — generally happens at the second death and is accomplished through the structure of the trust's distribution provisions, not by the revocable-trust form itself.
Can I change my Florida revocable trust after it's signed?
Yes. "Revocable" means exactly that — the grantor may amend or revoke the trust at any time during life and while having capacity. Amendments are made through a written amendment signed with the same formalities as the original trust.
Does a Florida revocable trust protect assets from creditors?
No. Because you retain full control and the right to revoke, the assets in a revocable trust remain reachable by your creditors during life. Asset-protection planning requires different tools — irrevocable trusts, homestead, Florida tenancy by the entireties for spouses, retirement-account protections.
What does it cost to set up a Florida revocable trust?
Costs vary with complexity. A straightforward couple's estate plan — joint revocable trust, two pour-over wills, four advance directives, plus funding — typically runs in the low- to mid-thousands depending on assets and family structure. We provide a written fee estimate at the consultation.
What happens to my Florida revocable trust when I die?
At the grantor's death, the trust becomes irrevocable and the successor trustee steps in. The trust terms then control: outright distribution to beneficiaries, continuing trust shares for minor or special-needs beneficiaries, charitable bequests, or any other structure the grantor designed. No probate is required for assets titled to the trust.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Ready to design your Florida estate plan?
Call (407) 843-0430 or schedule a consultation online to discuss whether a revocable trust, a will-based plan, or a combined approach best fits your situation.
Or text PROBATE to (407) 906-9507 for a faster response.
Yergey & Yergey, P.A. | 910 N. Fern Creek Avenue, Orlando, FL 32803
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.