Will vs. Trust in Florida

A will and a living trust are both used to direct how your assets are distributed after death. They are not interchangeable. A will goes through probate, becomes a public record, and only takes effect at death. A living trust avoids probate, remains private, provides management during incapacity, and takes effect as soon as it is funded. Most Florida residents with assets beyond a single home benefit from having both.

How Each One Works

A will is a written document that names beneficiaries, designates a personal representative, and provides instructions for distributing your estate. After you die, the will is filed with the probate court. The court appoints the personal representative, who gathers assets, pays debts and taxes, and distributes property to beneficiaries under court supervision. The entire process is public record.

A living trust is a written agreement in which you transfer ownership of your assets to a trust during your lifetime. You serve as trustee and primary beneficiary, so nothing changes from a practical standpoint while you are alive. When you die, a successor trustee you have named distributes trust assets to your beneficiaries according to the trust terms. No court involvement is required. No public filing occurs.

Comparison

Feature	Will	Living Trust
Avoids probate	No	Yes
Privacy	No (probate is public record)	Yes (trust is private document)
Effective during lifetime	No (only at death)	Yes (immediate upon funding)
Incapacity planning	No	Yes (successor trustee takes over)
Court supervision required	Yes	No
Covers all asset types	Only individually owned assets	Any asset titled in the trust
Out-of-state property	Requires ancillary probate in each state	Avoids ancillary probate
Can name guardian for minor children	Yes	No
Cost to create	$250 to $600	$1,500 to $4,500
Ongoing maintenance	None	Minimal (retitling new assets)
Time to distribute assets	6 months to 2+ years (probate timeline)	Weeks to months (no court delays)
Creditor protection for beneficiaries	None	Possible with spendthrift provisions
Stepped-up basis at death	Yes	Yes

Probate

Probate is the most significant practical difference. Every asset that passes through a will must go through probate, which in Florida involves court filings, creditor notice periods, and statutory waiting periods. Florida Statute § 733.6171 sets attorney fees based on the estate’s value: $1,500 on the first $100,000, and escalating percentages on larger amounts. On a $500,000 estate, statutory fees reach approximately $15,000, and the personal representative can claim a matching fee. The process typically takes six months to two years.

Assets in a living trust bypass probate entirely. The successor trustee distributes them directly without court involvement. For estates with multiple assets or property in more than one state, the probate savings in both time and cost are substantial.

Privacy

Probate proceedings are public record in Florida. Anyone can access the will, the inventory of assets, the list of creditors, and the names and addresses of all beneficiaries. For individuals who value privacy in their financial affairs, this is a meaningful disadvantage of relying solely on a will.

A living trust is a private document. No trust agreement, asset inventory, or distribution schedule is filed with any court or government office. The beneficiaries and terms remain confidential.

Incapacity Planning

A will provides no protection if you become unable to manage your affairs during your lifetime. If you become incapacitated and your only estate planning document is a will, your family may need to petition the court for guardianship over your property. Guardianship proceedings are expensive, time-consuming, and public.

A living trust addresses incapacity directly. The trust agreement defines what constitutes incapacity and designates a successor trustee who can step in immediately to manage trust assets without court involvement. The transition is private and seamless.

Even with a living trust, a durable power of attorney is recommended for assets and matters not covered by the trust. But the trust handles the bulk of financial management during incapacity.

When a Will Is Sufficient

A will alone may be adequate for Florida residents whose estates are relatively simple. If your assets consist primarily of a homestead property with a lady bird deed or joint ownership, bank accounts with payable-on-death designations, retirement accounts with named beneficiaries, and life insurance with named beneficiaries, there may be little or nothing left to pass through probate. In that scenario, a will serves primarily as a safety net for any overlooked assets and as the vehicle for naming a guardian for minor children.

The cost advantage is also relevant. A simple will costs $250 to $600, while a living trust package costs $1,500 to $4,500. For younger individuals with limited assets and straightforward family situations, the lower upfront cost of a will may be the practical choice.

When a Living Trust Is the Better Choice

A living trust becomes the better option as assets grow in number and complexity. Homeowners with significant bank accounts, investment portfolios, business interests, or rental properties need a tool that can hold and manage all of those assets without probate.

Florida residents who own real estate in other states should strongly consider a trust. Without one, the estate must open a separate probate proceeding in each state where the deceased owned property. A single living trust handles all properties regardless of location.

Anyone who wants to control how beneficiaries receive assets after death needs a trust. A will distributes assets outright and immediately. A trust can hold assets for minor children until they reach a specified age, protect a beneficiary’s inheritance from creditors through spendthrift provisions, provide for a special needs beneficiary without disqualifying them from government benefits, or distribute assets in stages over time.

Privacy and speed also favor the trust. Families who want to avoid the public nature of probate and the months or years of court-supervised administration will find the trust’s private, streamlined process worth the higher upfront cost.

Using Both Together

Most comprehensive estate planning packages in Florida include both a living trust and a pour-over will. The living trust serves as the primary instrument for managing and distributing assets. The pour-over will catches any assets not titled in the trust at death and directs them into the trust through probate. The trust terms then control how those assets are distributed.

The pour-over will also serves as the vehicle for naming a guardian for minor children, which a trust cannot do. For this reason alone, every parent with minor children needs a will regardless of whether they also have a trust.

Cost Comparison

Document	Typical Cost	What’s Included
Simple will	$250 to $600	Will, possibly a health care directive
Living trust package	$1,500 to $4,500	Trust, pour-over will, durable power of attorney, health care surrogate, living will

The trust package costs more upfront but eliminates probate costs at death. On a moderate Florida estate, probate fees can easily exceed $15,000. A $3,000 trust that avoids $15,000 in future probate costs is a favorable investment for most families.