Living Trust in Florida

A living trust is a revocable trust that a person creates during life, controls as trustee, and can amend or dissolve at any time. Assets the trust holds at death pass directly to the named beneficiaries without probate.

Probate cost is the main reason to create one. Florida law scales probate attorney fees and personal representative fees to the estate’s value, and a living trust takes every asset it holds at death out of both fee schedules. Settling the trust after death has smaller costs of its own, without a court proceeding.

Why Florida Residents Create Living Trusts

Florida probate takes six months to two years and costs thousands of dollars in statutory fees. Florida Statute § 733.6171 sets a fee schedule, presumed reasonable and scaled to the estate’s value, that most probate attorneys charge by. Personal representative compensation follows a similar schedule under § 733.617. On a $500,000 estate, statutory attorney fees alone reach approximately $15,000, and the personal representative’s fees can match that amount.

A living trust bypasses probate for every asset the trust holds at death. The successor trustee distributes those assets directly to beneficiaries without court involvement.

Probate avoidance is the primary reason people create living trusts, but a trust provides three other benefits. First, probate filings are public records. Anyone can look up the deceased person’s assets, debts, and beneficiaries. The trust agreement itself is not filed with any court. At the grantor’s death, the trustee files only a short notice of trust listing the grantor’s name, the trust’s name and date, and the trustee’s contact information, so the trust’s assets, terms, and beneficiaries stay out of the public record.

Second, a living trust provides a management structure for incapacity. If the person who created the trust can no longer manage their affairs, the successor trustee steps in immediately, without a court-appointed guardianship proceeding. The trust agreement defines what constitutes incapacity and how the determination is made.

Third, for Florida residents who own real estate in other states, a living trust avoids ancillary probate. Without a trust, the estate must open a separate probate proceeding in every state where the deceased owned real property.

How a Florida Living Trust Works

A Florida living trust is created by signing a written trust agreement governed by Chapter 736 of the Florida Statutes. The agreement names four roles: the grantor who creates the trust, the trustee who manages it (usually the grantor during their lifetime), a successor trustee, and the beneficiaries who receive assets at death.

After signing the agreement, the grantor funds the trust by transferring title to assets into the trust’s name. Until assets are actually transferred, the trust has no effect on them.

During the grantor’s lifetime, nothing changes from a practical standpoint. The grantor uses bank accounts, lives in the house, manages investments, and files the same tax return. The IRS treats a revocable living trust as a grantor trust. All income is reported on the grantor’s personal return using their Social Security number. No separate trust tax return is required while the grantor is alive, and the trust does not need its own tax identification number.

When the grantor dies or becomes incapacitated, the successor trustee takes over. The successor trustee manages trust assets according to the written instructions, pays remaining debts, and distributes property to the named beneficiaries. No court proceeding is required.

What a Living Trust Does Not Do

A revocable living trust does not protect assets from creditors during the grantor’s lifetime. Because the grantor retains the power to revoke the trust and access all trust assets, Florida law treats the trust the same as individually owned property for creditor purposes. Creditor protection comes instead from Florida’s statutory exemptions and irrevocable trust structures.

A living trust does not reduce income taxes. All trust income is taxed to the grantor at the same rates they would pay without the trust.

A living trust does not eliminate estate taxes. Trust assets remain part of the grantor’s taxable estate for federal estate tax purposes. For most Florida residents, this is irrelevant because the federal estate tax exemption is $15 million per person beginning in 2026, and Florida imposes no separate state estate tax or inheritance tax.

A living trust does not replace a will. Every trust-based estate plan includes a pour-over will, which sends any assets left outside the trust through probate and then into the trust. The pour-over will catches assets that were never retitled or that the grantor acquired after creating the trust.

Funding the Trust

A living trust only works if it holds assets. The trust must be funded by transferring ownership of assets into the trust’s name. An unfunded trust avoids nothing. A signed trust agreement with no assets in it leaves every individually titled asset subject to probate.

Real estate is transferred by executing a new deed from the grantor individually to the grantor as trustee. The deed must be recorded with the county recorder’s office. For homestead property, the transfer does not affect the homestead exemption, the property tax assessment, or the homestead creditor protection, provided the trust reserves the grantor’s right to live on the property for life.

Bank and brokerage accounts are retitled by contacting the financial institution and providing a copy of the trust agreement or a certificate of trust. The account is then held in the trust’s name.

Retirement accounts (IRAs, 401(k) plans) should generally not be retitled in the trust’s name during the grantor’s lifetime because doing so can trigger a taxable distribution. The trust can be named as the account’s beneficiary instead.

Life insurance policies can name the trust as beneficiary, ensuring the proceeds are distributed according to the trust terms rather than by a separate beneficiary designation.

Vehicles can be titled in the trust’s name, though doing so can create insurance and liability complications. An alternative is to address vehicle transfers through the pour-over will.

S corporation stock can stay in a revocable trust during the grantor’s lifetime without tax consequences because the IRS treats the grantor as the owner. After the grantor’s death, when the trust becomes irrevocable, federal tax law gives the trust two years as an eligible S-Corp shareholder. After that window, the trust must qualify as a Qualified Subchapter S Trust or an Electing Small Business Trust, or the company loses its S election. Business owners holding S-Corp shares in a living trust should confirm the trust agreement addresses this transition.

Florida Certification of Trust

A certification of trust is a short signed summary that verifies a trust’s existence and the trustee’s authority without disclosing the trust’s terms. When a bank, title company, or other institution asks for a copy of “the trust,” the trustee can provide the certification instead of the full trust agreement. The provisions naming who inherits the trust assets stay private.

A person who acts in reliance on a certification without knowledge that its representations are incorrect is protected as though the representations were true. The recipient may require copies of the trust excerpts that designate the trustee and confer the power to act in the transaction. The statute gives the recipient no broader right to the trust instrument, except where another law or a court proceeding concerning the trust requires it.

Section 736.1017, Florida Statutes, prescribes the certification’s contents: the trust’s existence and date, the settlor, the currently acting trustee and the trustee’s powers, any powers of direction, revocability, cotrustee signing authority, and the manner of taking title to trust property. The certification must also state that the trust has not been revoked, modified, or amended in any way that would make its representations incorrect. It need not contain the trust’s distribution provisions, and any trustee may sign it.

The downloadable sample certification is built to the statutory checklist, with bracketed placeholders for names, addresses, and dates.

How to Set Up a Living Trust in Florida

A Florida revocable living trust must be created by a written trust instrument signed by the grantor. Florida Statute § 736.0403 requires the testamentary provisions of a revocable trust—the instructions for distributing assets after the grantor’s death—to be executed with the same formalities as a Florida will. Those formalities are the grantor’s signature at the end of the document and two witnesses, each signing in the presence of the grantor and each other.

Without those formalities, the trust’s instructions for distributing assets at death are invalid under Florida law. The trust still works during the grantor’s life, but the death provisions fail. Notarization is not a required formality; standard practice is to sign every living trust before two witnesses and a notary anyway.

An executed but unfunded trust provides no benefit until assets are transferred.

Florida recognizes the validity of a living trust created in another state, provided the trust was properly executed under the laws of that state. People moving to Florida do not necessarily need to redo their living trust. However, they should have it reviewed because Florida’s homestead devise restrictions, witness requirements, and creditor protections differ from most states.

A complete estate plan typically includes the revocable living trust, a pour-over will, a durable power of attorney, a health care surrogate designation, a living will, and a declaration of preneed guardian.

The sample below is a simplified single-settlor Florida living trust, written for an unmarried settlor whose remaining trust property passes outright to descendants. It uses bracketed placeholders for names, successor trustees, and dates, and it carries the witness and notary execution page.

The sample below is a simplified joint Florida living trust for a married couple who create one trust together, and it follows the two-settlor revocation and amendment rules that apply when a trust has more than one settlor.

Joint vs. Separate Trusts for Married Couples

Married couples can create either a joint living trust or separate individual trusts.

A joint trust combines both spouses’ testamentary provisions in a single document. It works well for couples in a longstanding marriage with common children and shared assets. The couple’s jointly owned property goes into one trust, and the trust agreement describes what happens at each spouse’s death.

Separate trusts are appropriate in three situations. The first is a blended family. When each spouse has children from a prior marriage, each spouse can keep their own property in a trust they control independently, with provisions for their own children.

The second is a marriage where one spouse works in a higher-risk profession. The couple may divide assets so that the higher-risk spouse owns exempt assets (homestead, retirement accounts, annuities) and the lower-risk spouse holds non-exempt assets in a separate trust. The third is a spouse with disproportionate family wealth or an expected inheritance, who may want a separate trust to control the disposition of those assets.

Transferring tenancy by the entirety property into a trust can cost a married couple its creditor protection. Entireties ownership protects jointly held assets from the individual creditors of either spouse, and a conveyance into a trust changes the form of ownership. No Florida appellate court has decided whether that protection survives inside a joint trust, even one drafted with entireties-savings provisions, so couples who depend on entireties protection often keep those assets outside the trust. Transferring entireties assets to either spouse’s separate trust will almost certainly eliminate the protection.

Homestead Property and Living Trusts

Florida homestead property keeps its property tax exemption and its creditor protection inside a properly drafted revocable living trust, and the constitutional restrictions on devising a homestead apply to trust provisions just as they do to a will.

Property tax exemption. Transferring a homestead into a revocable living trust does not trigger a reassessment or eliminate the homestead tax exemption, provided the trust reserves the grantor’s beneficial interest in the property for life. Florida Statute § 196.041 treats a home held in a revocable trust as the resident’s own equitable title when the trust grants that interest, and the grantor must still live on the property as their primary residence.

Creditor protection. Homestead property in a revocable trust generally retains its constitutional protection from judgment creditors, though the case law is unsettled, particularly in bankruptcy. The strongest argument for continued protection comes from the grantor’s retained power to revoke the trust: the transfer is not a completed gift, so ownership effectively remains with the grantor.

Devise restrictions. The Florida Constitution restricts how homestead property can be left at death when the owner has a surviving spouse or minor children. A married homeowner cannot freely leave the homestead to anyone other than the surviving spouse.

If the homestead passes to someone else, the surviving spouse can claim either a life estate in the property or an undivided one-half interest as a tenant in common. A trust that attempts to override these restrictions will not succeed, and the result is often a legal dispute among beneficiaries. Every living trust holding a Florida homestead must be drafted with these constitutional limits in mind.

Can You Do Your Own Living Trust in Florida?

Florida law does not require a person to hire an attorney to prepare their own living trust. Online services and template-based options cost less than an attorney-prepared trust.

The Florida Supreme Court, however, has held that preparation of a living trust for another person by a nonlawyer, including the companies that sell trust packages, is the unauthorized practice of law. A trust document that is never funded can fail to avoid probate. So can one executed without the required witnesses or one that conflicts with Florida homestead law.

The recurring problems with self-prepared trusts are improper homestead transfers, incorrect beneficiary designations on retirement accounts, missing pour-over wills, and provisions that violate the homestead devise restrictions.

How Much Does a Living Trust Cost in Florida?

Attorney fees for preparing a Florida living trust typically range from $2,000 to $5,000. That cost usually includes the trust agreement, pour-over will, power of attorney, health care directives, and assistance with funding. Multiple properties or business interests raise the fee, and so does a blended family.

A living trust costs far less than probate. On a $500,000 estate, statutory attorney and personal representative fees alone can exceed $30,000, and those fees are paid again at each death—a married couple’s assets can go through probate twice. The one-time cost of a trust keeps the assets it holds out of probate.

Settling the trust has costs of its own. If the successor trustee hires an attorney for the initial trust administration, Florida law presumes reasonable a fee of 75 percent of the probate attorney schedule (§ 736.1007). There is no personal representative fee and no court proceeding.

A lady bird deed is a less expensive alternative for homeowners whose only goal is transferring a single property outside of probate. A lady bird deed typically costs $400 to $1,000. For people with multiple assets, accounts, or properties, a living trust provides broader coverage than any single-asset solution.