How to Create a Trust in Florida

Creating a trust in Florida means drafting a trust agreement, signing it before two witnesses, and transferring assets into the trust. No Florida statute requires a notary, though most trusts are notarized anyway. 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

A revocable living trust in Florida can be set up as 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 are co-trustees, and the trust holds all property in one document. A joint trust works well when both spouses share the same beneficiaries and distribution plan.

Separate trusts may be appropriate when spouses have children from prior marriages, when one spouse has more creditor exposure than the other, or when estate tax planning requires assets to be held separately.

Choose the Key Roles

A revocable living trust in Florida has four roles: a grantor, a trustee, a successor trustee, and at least one beneficiary.

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 is the initial trustee. Married couples typically act 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. The successor trustee manages trust assets, pays debts, and distributes property to beneficiaries without court supervision. Pick someone trustworthy, financially responsible, and willing to serve. A corporate trustee, such as a 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. Assets can be distributed outright, held until beneficiaries reach specified ages, or managed in ongoing trusts that protect minor children or beneficiaries with special needs.

Draft the Trust Agreement

The trust agreement is the legal document that creates the trust and sets out all of its terms. Under Florida Statute § 736.0402, a trust is created only if the grantor has capacity and intends to create it, the trust has a definite beneficiary, and the trustee has duties to perform. One person cannot be both the only trustee and the only beneficiary. The trust’s purpose must also be lawful under § 736.0404. A trust that holds real property must be in writing.

A typical trust agreement covers the grantor’s power to amend or revoke, the successor trustee’s authority when the grantor dies or becomes incapacitated, and named distributions directing particular assets to particular beneficiaries. The residuary plan says who takes everything not specifically given away. Provisions for minor beneficiaries and a spendthrift clause, which keeps a beneficiary’s creditors from reaching the beneficiary’s share before the trustee pays it out, round out the document.

The grantor signs the agreement at the end while two witnesses watch, and each witness then signs in front of the grantor and the other witness. Florida Statute § 736.0403 applies those will formalities to the parts of a revocable trust that give away property at death. A revocable trust signed without them still works during life, but its death provisions are invalid. Notarization is standard practice, but no statute requires it, and an unnotarized trust is still valid. A beneficiary may legally act as a witness, but disinterested witnesses avoid a later undue-influence dispute.

Fund the Trust

A trust that exists only on paper accomplishes nothing. The trust must be funded, with assets transferred into the trust’s name, before it can do its job. Any asset still in the grantor’s name alone at death, with no beneficiary designation, goes through probate no matter what the trust agreement says.

Real estate. Transfer real property 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, the trust must keep the grantor’s lifetime beneficial interest in the home, and the deed should say so. Without that, the property tax exemption and the Save Our Homes cap can be lost. A deed that fails the test is a change of ownership, and the home is reassessed at market value.

Bank and brokerage accounts. Contact each financial institution to retitle the account in the trust’s name. 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 retirement accounts are not retitled in the name of a trust during the account holder’s lifetime. Federal tax law defines an IRA as an account held for one individual, so moving it into a trust is treated as a distribution and taxed as income. Instead, the trust can be named as the beneficiary of the retirement account, and a tax advisor should review that designation before it is filed.

Life insurance. A life insurance policy is not retitled to the trust. Instead, the trust can be named as the beneficiary, so the proceeds are paid to the trustee and distributed under the trust terms.

Create a Pour-Over Will

A pour-over will 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 is also the place to name a guardian for minor children, since a trust cannot. The court must consider a guardian named in a will that leaves property to the child. A preneed guardian declaration under Florida Statute § 744.3046 goes further, because the named person is presumed entitled to serve unless the court finds them unqualified. Every trust-based estate plan should include a pour-over will. Whether a will or a trust is the primary tool depends on estate size, privacy concerns, and how much control the grantor wants.

Prepare Supporting Documents

A durable power of attorney, health care surrogate designation, and living will round out a trust-based estate plan. These documents handle situations that fall outside the trust itself.

A durable power of attorney gives a named agent authority over finances outside the trust, including filing tax returns, managing retirement accounts, and dealing with government agencies. A power of attorney signed in Florida takes effect the moment it is signed. Since October 1, 2011, Florida has not allowed a springing power of attorney, one that waits for incapacity to take effect.

A health care surrogate designation names someone to make medical decisions on the grantor’s behalf during incapacity. A living will (advance directive) states the grantor’s wishes regarding life-prolonging treatment if they have a terminal condition, an end-stage condition, or 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 do-it-yourself templates cost a fraction of an attorney’s fee. The drafting decisions and technical details are where self-prepared trusts go wrong, and the errors usually surface only after death, when nobody can fix them.

Self-prepared trusts fail in predictable ways. Nobody explains which assets need to be retitled, so the trust never gets funded. The trust is signed without two witnesses, and its instructions for who takes the property at death are invalid. The homestead deed resets the property tax assessment. Or the trust tries to leave the homestead to someone other than the spouse, which the Florida constitution forbids when a spouse or minor child survives. Leaving it to the spouse fails too when a minor child survives.

A trust prepared by an attorney typically costs $2,000 to $5,000 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.