How to Create a Trust in Florida

Creating a trust in Florida requires drafting a trust agreement, executing it with proper formalities, and transferring assets into the trust. The process involves several decisions about structure, roles, and funding that determine whether the trust accomplishes its intended purpose. Most Florida residents who create a trust are establishing a revocable living trust to avoid probate, maintain privacy, and plan for incapacity.

Decide on the Trust Structure

The first decision is whether to create an individual trust or a joint trust. Unmarried individuals create individual trusts. Married couples choose between a single joint trust that holds both spouses’ assets or two separate individual trusts.

A joint trust is simpler for married couples who own most assets together. Both spouses serve as co-trustees, and the trust holds community and individual property in one document. A joint trust works well when both spouses have the same beneficiaries and distribution plan.

Separate trusts may be appropriate when spouses have children from prior marriages and want different distribution plans, when one spouse has significantly more assets or creditor exposure than the other, or when estate tax planning requires assets to be held separately. An estate planning attorney can advise on which structure fits the situation.

Choose the Key Roles

Every trust requires a grantor, a trustee, a successor trustee, and beneficiaries.

Grantor. The grantor is the person who creates and funds the trust. In a revocable living trust, the grantor retains full control and can amend or revoke the trust at any time during their lifetime.

Trustee. The trustee manages trust assets according to the trust terms. In most revocable living trusts, the grantor serves as their own trustee. Married couples typically serve as co-trustees of a joint trust. Naming yourself as trustee means nothing changes in how you manage your assets day to day.

Successor trustee. The successor trustee takes over when the grantor dies or becomes incapacitated. This is one of the most important decisions in the process. The successor trustee will manage trust assets, pay debts, and distribute property to beneficiaries without court supervision. Choose someone trustworthy, financially responsible, and willing to serve. A corporate trustee (bank trust department or professional fiduciary) is an option for larger or more complex estates.

Beneficiaries. Beneficiaries are the people or entities who receive trust assets after the grantor’s death. The trust agreement specifies who receives what, when, and under what conditions. You can distribute assets outright, in stages at specified ages, or through ongoing trusts for minor children or beneficiaries with special needs.

Draft the Trust Agreement

The trust agreement is the legal document that creates the trust and contains all of its terms. Florida Statute § 736.0402 requires that a trust have a lawful purpose, ascertainable beneficiaries, and a trustee with duties to perform. The document must be in writing for any trust that holds real property.

A trust agreement typically addresses the grantor’s powers during lifetime (including the power to amend or revoke), the successor trustee’s authority upon incapacity or death, specific distributions (particular assets to particular beneficiaries), the residuary distribution plan (everything not specifically distributed), provisions for minor beneficiaries (age of distribution, trustee’s discretionary powers), spendthrift provisions that protect beneficiaries’ interests from their creditors, and the trust’s governing law.

The trust agreement must be signed by the grantor, witnessed by two people, and notarized. Florida Statute § 736.0403 requires the same execution formalities as a will: two witnesses who sign in the grantor’s presence and in each other’s presence, plus notarization.

Fund the Trust

Creating the trust agreement is only half the process. The trust must be funded — assets must be transferred into the trust’s name — for the trust to serve its purpose. An unfunded trust avoids nothing. Any asset still titled in the grantor’s individual name at death will require probate regardless of what the trust agreement says.

Real estate. Transfer real estate by recording a deed from your individual name (or joint names) to the trust. The deed must include the full legal description and be recorded in the county where the property is located. For homestead property, special language may be required to preserve the property tax exemption. Some counties require an affidavit confirming the transfer is to the grantor’s own trust.

Bank and brokerage accounts. Contact each financial institution to retitle the account in the name of the trust. The account will be held as “[Grantor Name], Trustee of the [Trust Name] dated [Date].” Some institutions have their own forms for this process.

Business interests. LLC membership interests are transferred by assigning the interest to the trust and updating the operating agreement. Corporate stock is transferred by issuing new certificates or updating the stock ledger. Partnership interests require an assignment and may require consent of other partners.

Retirement accounts. IRAs, 401(k) plans, and other qualified retirement accounts should generally not be retitled in the name of the trust during the grantor’s lifetime. Transferring a retirement account to a trust triggers a taxable distribution. Instead, the trust can be named as the beneficiary of the retirement account, though this has income tax implications that should be discussed with a tax advisor.

Life insurance. The trust can be named as the beneficiary of a life insurance policy. The policy itself is not retitled. Naming the trust as beneficiary ensures the proceeds are distributed according to the trust terms rather than directly to an individual.

Create a Pour-Over Will

A pour-over will is a companion document that catches any assets not transferred to the trust during the grantor’s lifetime. It directs that all remaining individually owned assets be transferred into the trust through probate after death. The trust terms then control how those assets are distributed.

A pour-over will also serves as the vehicle for naming a guardian for minor children, which a trust cannot do. Every trust-based estate plan should include a pour-over will.

Prepare Supporting Documents

A comprehensive trust-based estate plan includes several documents beyond the trust agreement and pour-over will.

A durable power of attorney grants authority to a designated agent to handle financial matters that fall outside the trust, such as filing tax returns, managing retirement accounts, and dealing with government agencies. The power of attorney takes effect if you become incapacitated (or immediately, depending on how it is drafted).

A health care surrogate designation names someone to make medical decisions on your behalf if you cannot make them yourself. A living will (advance directive) states your wishes regarding life-prolonging treatment if you are terminally ill or in a persistent vegetative state.

Can You Create a Trust Without an Attorney

Florida law does not require an attorney to create a trust. Online services and template-based options are available at lower price points, typically $200 to $500. However, creating a trust involves decisions and drafting details where errors are not apparent until after death, when it is too late to fix them.

Common problems with self-prepared trusts include failure to fund the trust (the trust agreement exists but no assets were transferred into it), incorrect execution (missing a witness or notarization that renders the trust invalid), homestead transfers that inadvertently affect the property tax exemption or create creditor exposure, retirement account designations that trigger unintended tax consequences, and provisions that conflict with Florida law.

A trust prepared by an attorney typically costs $1,500 to $4,500 and includes the trust agreement, pour-over will, power of attorney, health care surrogate, and living will. The attorney also handles funding guidance and, in most cases, the deed to transfer real estate into the trust. The cost of correcting a defective self-prepared trust — or the cost of probate when the trust fails — generally exceeds the attorney fee.