Will vs. Trust in Florida

A will takes effect at death and goes through probate. A living trust takes effect as soon as it is funded, avoids probate, and provides management during incapacity. Most Florida residents with assets beyond a primary home and a few beneficiary-designated accounts benefit from having both.

How a Will Works

A Florida will names beneficiaries, designates a personal representative, and provides instructions for distributing property after death. The personal representative files the will with the probate court, gathers assets, pays debts and taxes, and distributes property to beneficiaries under court supervision. Florida Statute § 732.502 requires the will to be written, signed by the testator, and witnessed by two people who also sign.

A will can name a guardian for minor children, and the court must consider that nomination when the child is a beneficiary of the will. Florida also lets both parents sign a separate preneed guardian declaration and file it with the clerk under § 744.3046. That declaration carries more weight: when it is produced, the named guardian is presumed entitled to serve and takes over immediately on the death of the last surviving parent. Parents of minor children should sign both.

How a Living Trust Works

A Florida living trust holds assets that the grantor transfers into it during life. The grantor is typically both the trustee and the primary beneficiary, so day-to-day control over the assets does not change. When the grantor dies, a successor trustee distributes trust assets to beneficiaries according to the trust terms—no court involvement, no public filing.

Under § 736.0403, a revocable living trust’s death provisions are invalid unless the trust was signed with the formalities Florida requires for a will. Those are the provisions that say who receives trust property after the grantor dies. The grantor signs at the end, two witnesses are present, and both witnesses sign in front of the grantor and each other. A notary is not required. A trust that misses those formalities can still hold and manage property during the grantor’s life and still fail to distribute anything at death.

Will vs. Trust: Key Differences

Feature	Will	Living Trust
Avoids probate	No	Yes
Privacy	No (probate is public record)	Yes (trust is a 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
Asset coverage	Only individually owned assets not passing by beneficiary designation	Any asset titled in the trust
Out-of-state property	Requires ancillary probate in each state	Avoids ancillary probate
Names guardian for minor children	Yes	No
Cost to create	$1,000 to $2,000	$2,000 to $5,000
Ongoing maintenance	None	Minimal (retitling new assets into the trust)
Time to distribute assets	6 months to 2+ years	Weeks to months
Creditor protection for beneficiaries	Only through a testamentary trust created by the will	Possible with spendthrift provisions

What Probate Costs and How Long It Takes

Formal probate administration in Florida takes six months to two years and generates substantial fees. Florida Statute § 733.6171 sets a presumed-reasonable attorney fee schedule: $3,000 on the first $100,000 of the probate estate, plus 3 percent of the next $900,000. On a $500,000 estate, that schedule produces a $15,000 attorney fee. The personal representative’s commission follows a separate schedule under § 733.617: 3 percent of the first $1 million, or another $15,000 on that estate. The probate court file is public, except for the estate inventory, which Florida law keeps confidential.

Assets titled in a living trust are not part of the probate estate. Under § 733.707(3) and § 736.05053, the trustee must still pay estate expenses and obligations the probate estate cannot cover, on the personal representative’s written certification. The successor trustee distributes what remains to the beneficiaries without a court proceeding or a public filing. For estates with multiple asset types or real property in more than one state, the savings in cost and time are substantial.

Privacy

A will filed for probate becomes a public record in Florida. The will itself, the creditor claims, and the names and addresses of the beneficiaries are available to anyone who requests them, though Florida law limits the estate inventory to interested persons such as beneficiaries and creditors. For anyone with a high-profile practice, business competitors, or family situations they prefer to keep private, this exposure is a meaningful drawback.

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 unless a dispute ends up in litigation.

Incapacity Planning

A will provides no protection during lifetime incapacity. If a person becomes unable to manage financial affairs and the only estate planning document is a will, the family may need to petition the court for guardianship, a process that is expensive, slow, 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 or public proceedings. The transition happens under the terms the grantor set in advance.

A durable power of attorney is still needed for financial accounts and transactions the trust does not cover, but the trust handles most financial management during incapacity.

When a Will Alone Is Sufficient

A will may be the only document needed when an estate has little or nothing that would pass through probate. Common examples: homestead property transferred through a lady bird deed or joint ownership, bank accounts with payable-on-death designations, and retirement and life insurance accounts with named beneficiaries. If those cover the entire estate, nothing is left to probate. The will is a safety net for any overlooked assets and names a guardian for minor children.

A simple will package prepared by a Florida attorney typically costs $1,000 to $2,000. A living trust package—including the trust, pour-over will, durable power of attorney, and health care directives—runs $2,000 to $5,000. 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 stronger option as the number and complexity of assets increase. Homeowners with substantial 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 have a particularly strong case for a trust. Without one, the estate must open a separate probate proceeding, called ancillary probate, in each state where the deceased owned property. A single living trust handles all properties regardless of location, avoiding multiple court proceedings and the attorney fees that come with each.

A trust also provides control over how beneficiaries receive assets after death. A will distributes property outright and immediately. A trust can hold assets until minor children reach a specified age, protect a beneficiary’s inheritance through spendthrift provisions, or distribute assets in stages over time. A trust can also provide for a special needs beneficiary without jeopardizing eligibility for government benefits.

Using a Will and Trust Together

Most complete estate plans in Florida include both a living trust and a pour-over will. The living trust is 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 names a guardian for minor children, which a trust cannot do. A parent who wants that nomination to bind should also sign a preneed guardian declaration under § 744.3046. If the named guardian is qualified to serve under § 744.309, the court must appoint that person unless it finds the appointment contrary to the child’s best interests.

What Happens Without Either Document

A Florida resident who dies without a will or a trust leaves asset distribution to Florida’s intestacy statutes. Under § 732.102 and § 732.103, a surviving spouse takes the whole intestate estate only when the deceased left no descendants, or when every descendant of the deceased is also the spouse’s descendant and the spouse has no other descendants.

A child from an earlier relationship on either side cuts the spouse’s share to half, and all of the deceased’s descendants divide the other half. If there is no surviving spouse, the estate passes to descendants. If there are no descendants, it passes to parents, then siblings.

Intestacy also means no guardian nomination in a will. Unless the parents signed and filed a preneed guardian declaration, the court appoints a guardian on its own assessment, which may not reflect the parents’ wishes. For estates of any complexity, dying intestate almost always leads to a more expensive and contentious probate process than dying with even a simple will.

Cost Comparison

Document	Typical Cost	What’s Included
Simple will package	$1,000 to $2,000	Will, durable power of attorney, health care surrogate designation, and living will
Living trust package	$2,000 to $5,000	Trust, pour-over will, durable power of attorney, health care surrogate, living will

The trust package costs more upfront, but the assets the trust holds are not counted in the probate fee schedules. Assets never retitled into the trust still pass through probate under the pour-over will, at those same rates. Whether the package saves anything depends on how completely the grantor funds the trust during life.