A revocable trust can be changed or cancelled by you at any time, and in Florida a trust is revocable unless its terms expressly say otherwise (section 736.0602). An irrevocable trust generally cannot be changed by the person who created it, though a court may modify it in limited circumstances. Most families use a revocable living trust.
When people start looking into trusts, the first fork in the road is revocable or irrevocable. The words sound technical, but the idea is simple: can you change your mind later, or not? That one question drives almost every other difference, from control and flexibility to how creditors and taxes treat the trust. This guide explains both types under Florida law and why most families end up with a revocable living trust.
What is a revocable trust?
A revocable trust, often called a revocable living trust, is a trust you create during your lifetime and can change or cancel whenever you want while you have capacity. You usually serve as your own trustee, you are the main beneficiary while you live, and you name a successor trustee to take over if you become incapacitated or after you die. Assets titled in the trust pass without probate, which is the main reason people create one.
Florida's default rule favors this flexibility. Under section 736.0602(1) of the Florida Statutes, the person who creates a trust may revoke or amend it unless the terms of the trust expressly make it irrevocable. Under section 736.0602(3), you change or revoke it by the method the trust sets out, or, if it sets out none, by a later will or codicil that expressly refers to the trust or another method that shows your intent by clear and convincing evidence.
What is an irrevocable trust?
The Florida Bar's consumer pamphlet on irrevocable trusts describes one as a trust that "cannot be revoked or amended by the settlor", the person who created it. It notes that an irrevocable trust can come about in three common ways: the creator designates it as irrevocable from the start, a revocable trust becomes irrevocable when its creator dies, or a trust is created under a will. The pamphlet also notes that a court can modify or reform an irrevocable trust in certain limited circumstances.
That second point surprises many people. Every revocable living trust eventually becomes irrevocable, at the death of the person who made it. From then on, the successor trustee must follow the instructions as written.
Revocable vs irrevocable trust at a glance
| Question | Revocable trust | Irrevocable trust |
|---|---|---|
| Can the creator change or cancel it? | Yes, at any time while competent (s. 736.0602) | Generally no; a court may modify it in limited circumstances |
| Who usually serves as trustee during life? | You | Often someone other than the creator |
| Does it avoid probate for assets it holds? | Yes | Yes |
| Can the creator's creditors reach it during life? | Yes, to the extent the property would not be exempt if you owned it directly (s. 736.0505(1)(a)) | They can reach the most that could be distributed to or for the creator (s. 736.0505(1)(b)) |
| Does it plan for incapacity? | Yes, the successor trustee steps in | Yes, the trustee continues managing |
| Tax effects of funding it | Generally none while you live; you keep control | Transfers can be taxable gifts and need professional tax advice |
| When does it end up irrevocable? | At the creator's death | From the start |
Does a revocable trust protect assets from creditors?
Not during your lifetime. Under section 736.0505(1)(a), while a trust is revocable, its property is subject to the claims of the creator's creditors to the extent it would not be exempt if the creator owned it outright. In other words, putting assets in your own revocable trust does not shield them. Property that is already exempt under Florida law, such as a protected homestead, generally keeps that status.
For irrevocable trusts, section 736.0505(1)(b) lets a creator's creditors reach the maximum amount that could be distributed to or for the creator's benefit. A trust that can pay you back is still reachable to that extent. Real creditor protection through an irrevocable trust generally requires giving up the benefit as well as the control, which is a significant step and not one to take lightly.
Do irrevocable trusts have tax consequences?
Often, yes. The Florida Bar pamphlet explains that a transfer into an irrevocable trust is usually a taxable gift for federal purposes, although it may be covered by the annual exclusion or the donor's unified credit, and that estate, generation skipping and income tax consequences can follow. Those issues are complex and depend on federal law and your finances. Florida itself has no state estate tax and no inheritance tax, as our guide to Florida estate tax explains, so for most families a trust is not needed for state tax reasons.
Which type suits most Florida families?
For most people, the deciding factor is control. A revocable trust lets you:
- Keep managing your own property exactly as before.
- Change beneficiaries after a marriage, divorce or birth.
- Sell or refinance trust property without asking anyone.
- Name a successor trustee who can step in without a guardianship.
- Pass assets to your family without probate and with more privacy than a will.
An irrevocable trust is generally considered when the goal is something a revocable trust cannot do, such as removing assets from your taxable estate for federal purposes or placing assets beyond your own reach. Those goals come at the cost of control, and they call for careful advice from both a lawyer and a tax professional.
How do you set up a revocable living trust in Florida?
- Decide on your trustees and beneficiaries. Choose a successor trustee and a backup, and decide how and when beneficiaries receive their shares.
- Sign it with the right formalities. Under section 736.0403, the parts of a revocable trust that take effect at death must be signed with the same formalities as a will, before two witnesses who also sign.
- Fund it. Retitle real estate, bank and brokerage accounts into the trust. A trust only controls what it owns.
- Add a pour over will. It catches anything left outside the trust.
- Review it. Revisit the trust after major life events. Because it is revocable, updates are straightforward.
If you are deciding between a trust and a will in the first place, our post on will vs trust in Florida walks through that choice. For ways to keep assets out of court, see how to avoid probate in Florida. You can also ask an attorney about your own situation; we meet clients in Broward County and across our other Florida offices. Our estate planning overview shows how a trust fits with the rest of a plan.
David Cannady is the founding partner of Cannady & Associates. A former Florida prosecutor, he was admitted to The Florida Bar in 2014 and earned his J.D. at Florida State University College of Law.
This article is general information about Florida law, not legal advice for your situation. Laws change; talk to a lawyer about your facts.
