In Florida, a will takes effect only at death and property passing under it generally goes through probate. A revocable living trust works during your life and after, and assets titled in it pass without probate. A trust needs more setup, including retitling assets, and many families use both: a trust plus a pour over will.
"Do I need a will or a trust?" is one of the most common questions an estate planning lawyer hears. The honest answer is that it depends on what you want the plan to do. Both documents say who receives your property. The differences lie in timing, court involvement, privacy and how much work they take up front. This guide compares them under Florida law so you can see which fits your family.
What does a will do in Florida?
A last will and testament speaks only after you die. It names who inherits, who serves as personal representative, and who you would want as guardian of minor children. Under section 732.502, you sign it at the end in front of two witnesses, who sign in your presence and each other's. Property that passes under a will generally goes through probate, the court process that confirms the will, gives creditors a chance to file claims and oversees distribution.
What does a revocable living trust do?
A revocable living trust works now and later. You transfer assets into the trust, usually serve as your own trustee, and name a successor trustee to manage things if you become incapacitated or after you die. Assets titled in the trust pass without probate. Under section 736.0403, the parts of the trust that take effect at death must be signed with the same formalities as a will.
Will vs trust at each stage of life
| Stage | Will | Revocable living trust |
|---|---|---|
| Signing | Two witnesses (s. 732.502); a self proving affidavit before a notary is recommended (s. 732.503) | Two witnesses for the death provisions (s. 736.0403), plus funding: retitling assets into the trust |
| While you are healthy | Does nothing yet | You manage the trust as trustee; you can change it anytime (s. 736.0602) |
| If you become incapacitated | Does nothing; you need a durable power of attorney | Your successor trustee manages trust assets without a court |
| At death | Property passing under the will generally goes through probate | Trust assets pass without probate; only assets left outside may need it |
| Privacy after death | A probated will is filed with the court | The trust is not filed with the court in the same way |
| Naming a guardian for minor children | Yes | No; you still need a will for this |
| Up front effort | Lower | Higher, because assets must be retitled |
What happens after death under each one?
With a will, the personal representative named in it must usually be appointed by the court before acting, and in Florida a personal representative generally must be represented by a Florida attorney (Fla. Prob. R. 5.030). The estate then follows the probate steps: notice to creditors, a claims period that is generally three months from first publication of the notice (section 733.702), payment of valid debts and distribution.
With a funded trust, the successor trustee you named can step in without a court appointment. The trustee still has duties under the Florida Trust Code to administer the trust prudently and keep beneficiaries reasonably informed, as The Florida Bar's consumer materials explain, but the day to day work happens outside the courthouse.
Can a trust name a guardian for my children?
No. A guardian nomination belongs in a will. That is one reason a trust based plan still includes a short pour over will. The pour over will names the guardian and catches any property left outside the trust, moving it into the trust after death. Property passing that way may still need probate, which is why funding the trust well matters.
When might a will alone be enough?
A trust is not always necessary. A will based plan can be reasonable when:
- Your estate is modest and most assets already pass by beneficiary designation or joint ownership.
- Your probate estate would likely qualify for summary administration, the shorter Florida process. Under section 735.201, as amended by chapter 2026-57, Laws of Florida, it is generally available when the non exempt estate is $150,000 or less, or when the person died more than two years ago. The limit was raised from $75,000 effective July 1, 2026; for deaths before that date, ask us which limit applies.
- You are young, your assets are simple and your main goal is naming a guardian for your children.
Even then, a will should be paired with a durable power of attorney and health care documents so that incapacity is covered.
When does a trust usually make more sense?
- You want to keep your estate out of probate and out of the public court file.
- You own real estate in more than one state, which could otherwise mean probate in each state.
- You want an inheritance held and managed for a young or vulnerable beneficiary over time.
- You want a seamless handover if you become unable to manage your finances.
- Your family situation is complex, such as a blended family.
Not sure which side of the line you fall on? Ask an attorney for a free consultation; we can usually tell you within one conversation.
Does Florida homestead law change the answer?
It applies to both. If you are survived by a spouse or a minor child, section 732.4015 limits how you can leave your Florida homestead, whether by will or through a revocable trust. A trust does not get around those limits. Homeowners who want a simple way to pass a house outside probate often look at a lady bird deed, which has its own homestead considerations.
What drives the cost of each option?
We do not quote figures here, because cost depends on the plan. With a will, most of the cost and time comes later, in probate, and depends on the size of the estate, creditor issues and whether anyone disputes the will. With a trust, more of the work happens now, in drafting and funding, and administration after death is usually simpler. Our guide to how to avoid probate in Florida covers what drives probate cost in more detail.
How to decide
- List what you own and how it is titled. Note which assets already have beneficiaries.
- Decide what matters most. Avoiding probate, privacy, managing an inheritance, or simplicity.
- Think about incapacity. Who should manage your affairs if you cannot?
- Talk it through. We explain both paths and recommend what fits, as part of a complete Florida estate plan. Clients in Pinellas County and our other service areas start with a free consultation.
If a trust is on the table, our post on revocable vs irrevocable trusts explains the next decision.
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.
