Florida Estate Planning Guide

Trust vs. Will in Florida:
Which Do You Actually Need?

A will alone forces your family through Florida probate — a public court process that takes 6–18 months and costs 3–5% of your estate. Here is what every Florida resident needs to know.

By Arthur Simpson, Esq. Florida Estate Planning Attorney Last Updated: May 2025

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.

Key Fact Florida has a modern, comprehensive trust code (F.S. Chapter 736, effective July 1, 2007) that gives trustees broad authority and protects beneficiaries. Florida also permits perpetual dynasty trusts — assets can remain in trust for multiple generations with no rule against perpetuities (F.S. § 689.225).

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 ValueStatutory Attorney FeePlus 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

FeatureRevocable Living TrustLast Will & Testament
Avoids probate?Yes — assets pass directlyNo — must go through probate
Public record?No — completely privateYes — court public record
Covers incapacity?Yes — successor trustee steps inNo — only effective at death
Multi-state property?Yes — avoids ancillary probateNo — separate probate in each state
Cost to administerLow — no court feesHigh — statutory attorney fees
Timeline at deathDays to weeks6–18 months
Names guardian for minor children?NoYes — required for guardianship
Requires funding?Yes — assets must be retitledNo — 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.

⚠ Florida Homestead Warning Florida's homestead law (Art. X, § 4, Florida Constitution; F.S. § 732.4015) imposes strict restrictions on devising homestead property. You cannot devise your homestead away from a surviving spouse, and complex rules apply when you have both a surviving spouse and minor children. Any estate plan that includes real property in Florida must carefully address homestead. An improperly drafted will or trust can result in your home not passing as intended.

When a Will Alone May Be Sufficient

A will without a trust may be adequate in limited circumstances:

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

Do I need a trust or a will in Florida?
Most Florida residents benefit from having both. A revocable living trust avoids probate and keeps your affairs private, while a pour-over will catches any assets not transferred into the trust. If your estate is under $75,000 and you have no real property, a will alone with summary administration may be sufficient. For most homeowners and families, a trust is the stronger choice.
Does a will avoid probate in Florida?
No. A will does not avoid probate in Florida — it is a set of instructions to the probate court. A revocable living trust avoids probate because assets held in the trust pass directly to beneficiaries without court involvement at death.
What is Florida probate and how much does it cost?
Florida probate is the court-supervised process for distributing a deceased person's estate. Under F.S. § 733.6171, attorney fees are set by statute and typically equal 3%–5% of the gross estate. A $500,000 estate could cost $12,500–$25,000 in fees plus 6–18 months in proceedings. A funded revocable trust eliminates this cost entirely.
Can I transfer my Florida homestead into a trust?
Yes. Florida homestead property can generally be transferred into a revocable living trust and retain its homestead ad valorem tax exemption, provided the beneficiary meets the residency requirements (F.S. § 196.031). The deed transfer is typically exempt from documentary stamp tax when the grantor is the trustee (F.S. § 201.02).
What is a pour-over will in Florida?
A pour-over will is a companion document to your trust that directs any assets in your individual name at death to "pour over" into your trust. It ensures that assets accidentally left out of the trust still distribute under the trust's terms. It also serves as the only document that can name a guardian for minor children.
How much does a revocable trust cost in Florida?
A complete Florida trust package — including the trust agreement, pour-over will, durable power of attorney, healthcare surrogate designation, and living will — typically costs $1,500–$3,500 at most Florida estate planning firms. Cornerstone's flat-fee plans start well below that range. Visit cornerstonewealthlegacy.com for current pricing.

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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.