Will vs. Trust in Florida

The 30-second answer: a will says who gets your stuff after you die — but it goes through probate. A revocable living trust also says who gets your stuff, but it skips probate (if properly funded). Most thoughtful Florida estate plans use both: a trust as the main vehicle, plus a 'pour-over' will for backup.

Below: what each one actually does, the honest case for each, and the Florida-specific considerations that change the math.

What a will does (and doesn't)

A Florida last will & testament does three things: names a personal representative, distributes your assets, and (if applicable) names guardians for minor children. It takes effect only at death.

• Will does: distribute assets, name PR, name guardians, express funeral wishes, exercise powers of appointment.
• Will does NOT: avoid probate, take effect during your lifetime, control how assets are used after distribution, protect assets from creditors during life.
• Will must: be in writing, signed by you in the presence of two witnesses who also sign in your presence and each other's. Notary not technically required, but a self-proving affidavit (which requires notary) makes probate easier.
• Will can be: changed by codicil, replaced by a new will, or revoked entirely. Florida law requires specific formalities for each.

A will alone always means probate. That's not a bad thing for many estates — Florida summary administration takes 4–8 weeks and costs ~$1,950 with us. But for larger estates or families that want privacy, the probate avoidance of a trust matters.

What a trust does (and doesn't)

A revocable living trust is a separate legal entity you create and 'fund' (transfer assets into) during your lifetime. You're typically both the grantor (creator) and the initial trustee, so practically nothing changes about how you use your assets day-to-day. At death, your successor trustee distributes assets per the trust document — without probate.

• Trust does: avoid probate (if funded), provide management during incapacity, keep distribution private, allow staged distributions to beneficiaries (e.g., 'half at 25, half at 30').
• Trust does NOT: provide creditor protection (revocable trusts don't), reduce estate taxes (revocable trusts don't), automatically capture all your assets (must be funded).
• Trust must: be properly executed (in Florida, notarized + 2 witnesses for full formality), and funded — assets retitled into the trust's name.
• Trust can: be changed or revoked entirely while you're alive and competent, become irrevocable at death (controlling distribution), or include separate sub-trusts for tax planning or special-needs beneficiaries.

The honest case for each

A standalone will makes sense when:

• Your estate is small enough that summary administration (under $150k) is the realistic path anyway. Probate isn't expensive at that level.
• All your major assets pass by beneficiary designation (life insurance, IRAs, 401(k)s, POD/TOD accounts) — those skip probate without needing a trust.
• You have young children and the will's primary job is naming guardians and a backup parent.
• You want to keep planning simple — no funding to track, no successor trustees to coordinate, no annual review.
• Your assets are mostly in joint accounts with a spouse — those skip probate too.

When a trust makes sense

A revocable living trust earns its keep when:

• You own a Florida home and want it to skip probate. The home is the #1 driver of probate filings. A trust holding the home avoids that. (Note: Lady Bird deed is a cheaper alternative for just the home.)
• Your estate is over $150k and would otherwise trigger formal administration. The trust avoids 6–12 months of court process.
• You have out-of-state property. Each state typically requires its own probate; a trust avoids multiple proceedings.
• You want privacy. Probate filings are public records — your assets, beneficiaries, debts, and family disputes become searchable. Trusts are private.
• You expect incapacity before death (dementia, progressive illness). A trust gives a successor trustee authority to manage assets without a guardianship court process.
• You want staged distributions to beneficiaries. 'Half at 25, half at 30' or 'income only until 35' isn't really doable with a will alone.
• You have a blended family with children from prior relationships. Trust drafting can carefully allocate between current spouse and prior-marriage children.

The combo: pour-over wills

Almost every trust we draft comes with a pour-over will as a backup. The pour-over will says: 'whatever I forgot to put in the trust, transfer it into the trust at my death.' It catches assets that didn't get retitled (a forgotten brokerage account, a car titled in your name).

The pour-over will itself goes through probate — but only for whatever assets weren't in the trust. If the trust is well-funded, the pour-over may have nothing to do, and probate may not be needed at all (or may qualify for summary admin if very little remains in your name).

Florida-specific considerations

• Homestead. Florida's constitutional homestead protections do not transfer to a trust in the same way. Putting your homestead into a revocable trust can affect creditor protection and homestead descent rules. We do this carefully and in many cases use a Lady Bird deed for the homestead instead.
• Lady Bird deed alternative. If your only probate-avoidance goal is the home, a Lady Bird deed ($750 with us) does the job for far less than a full trust. Sometimes it's the right answer.
• No state estate tax. Florida has no state estate or inheritance tax. The federal exemption is ~$13.6M (2026). For most Florida estates, tax planning isn't the primary driver — probate avoidance and family clarity are.
• Snowbirds. If you split time between FL and another state, your domicile matters. Florida residency drives Florida homestead protection and the absence of state income tax. Trust drafting needs to handle multi-state issues.

When NOT to do a trust

Trusts are oversold. Here's when you probably don't need one:

• Estate is small (under $150k) and beneficiary designations cover most assets. Probate is fast and cheap; trust isn't worth the funding effort.
• You won't fund it. If you don't actually retitle assets into the trust, the trust is paperwork. We've seen many trusts created and never funded. Sad, expensive, and avoidable.
• You're not going to update it. Estate plans need light reviews every 3 years and updates after major life events. If you're set-and-forget, a will may serve you better.
• Married couple with simple wishes. A married couple leaving everything to each other and then to the kids may not need the trust complexity. A simple will + good beneficiary designations + a Lady Bird deed on the homestead might be cleaner.

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