Do I Need a Will or a Trust in Florida?
Written by Blake Stewart | Florida Bar No. 84716 | Admitted 2010 | Florida Bankruptcy & Estate Planning Attorney
Most Florida families need both — but for different reasons. A will ensures your assets go to the right people and names a guardian for your minor children. A revocable living trust does the same thing while also avoiding probate, keeping your affairs private, and providing a mechanism to manage your assets if you become incapacitated before you die.
What a Will Does — and What It Doesn't
A last will and testament under Fla. Stat. § 732.502 directs the distribution of your probate estate, names your personal representative (executor), and — critically — designates a guardian for any minor children. Without a will, Florida's intestacy laws under Fla. Stat. §§ 732.101–732.103 make those decisions for you.
What a will does not do is avoid probate. Every asset that passes under a will must go through Florida's court-supervised probate process. For estates requiring formal administration under Fla. Stat. Chapter 733, that means a mandatory 90-day creditor notice period at minimum, a process that typically runs 6 to 12 months, attorney and personal representative fees that together often total roughly 3% of the estate's gross value, and a court record that becomes publicly accessible. A will tells the court what you wanted — it does not keep your family out of court.
A will is the right primary document when:
- —Your estate is relatively simple — primarily bank accounts and personal property with named beneficiaries
- —You are young, healthy, and your primary goal is naming a guardian for minor children
- —Your assets are mostly already structured to avoid probate (beneficiary designations, joint accounts, retirement accounts)
- —Probate cost and timeline are not significant concerns given your estate's size
What a Trust Does Differently
A revocable living trust under Fla. Stat. Chapter 736 is a legal arrangement in which you transfer ownership of your assets to a trust during your lifetime. You serve as your own trustee and manage everything exactly as you do today. You can amend or revoke it at any time. When you die, your successor trustee distributes assets directly to your named beneficiaries — without probate, without a court filing, and without creating a public record.
The trust also solves the incapacity problem a will cannot. If you become unable to manage your own finances, your successor trustee steps in immediately, without court involvement. A will has no authority while you are alive — it does nothing for incapacity. A trust does.
A trust adds meaningful value when:
- —You own Florida real estate — a funded trust eliminates probate on that property entirely
- —You want to keep your financial affairs private — trust terms are never filed in court
- —You have a blended family and want to control exactly how assets pass to children from different relationships
- —You want to plan for incapacity in the same document that plans for death
- —Your estate is large enough that the 3% probate cost represents real money
- —You have assets in multiple states — a trust avoids ancillary probate in each state
The Most Common Mistake: An Unfunded Trust
A trust only avoids probate for assets that have been properly transferred into it. This is called "funding" the trust. Real estate must be deeded into the trust's name. Bank accounts and investment accounts must be retitled. If you create a trust but never transfer your house into it, the house still goes through probate.
This is where many families discover that their trust did not work as intended — not because it was poorly drafted, but because it was never properly funded. Working with an attorney to fund the trust at the time of creation, and then retitling new assets as you acquire them, is just as important as the document itself.
For a full overview of every tool available — trusts, Lady Bird deeds, beneficiary designations, and payable-on-death accounts — see the How to Avoid Probate in Florida deep-dive, or return to the Estate Planning FAQ.
The Right Answer for Most Florida Families
Will only: Sufficient for younger clients with modest estates, no real estate in their sole name, and beneficiary designations already in place on most accounts. Still essential for naming a guardian for minor children.
Will + Trust: The stronger plan for most Florida homeowners, clients with significant financial accounts, anyone in a blended family, and anyone for whom the time, cost, and public nature of probate is a concern. The trust handles the heavy lifting for assets; the pour-over will captures anything left outside the trust and names the guardian.
Will + Lady Bird Deed (no trust): A cost-effective middle option for clients who own a Florida home, want to keep it out of probate, but do not have enough additional assets to justify a full trust. The Lady Bird deed handles the real estate; beneficiary designations handle financial accounts; the will covers anything remaining.
The right structure depends on what you own, how it is titled, who you want to inherit it, and what you want the process to look like for your family. That analysis takes one conversation — not a lengthy discovery process.
Frequently Asked Questions
Do I need a will if I already have a trust?
Yes. Even with a fully funded trust, a pour-over will is important for two reasons. First, it captures any assets you did not transfer into the trust during your lifetime and directs them into the trust at death. Second — and this cannot be accomplished in any other document — a will is where you name a guardian for minor children. No trust document can designate a guardian.
Does a trust replace a will?
No. A trust and a will serve different but complementary purposes. A trust manages and distributes trust assets outside of probate. A will handles assets outside the trust, designates a guardian, and serves as a backup. Most comprehensive estate plans include both.
Which is less expensive — a will or a trust?
A will costs less to create than a trust. But the relevant comparison is not creation cost — it is total cost over time. A will leads to probate, which in Florida typically costs 3% or more of the estate's gross value in combined fees. A trust costs more upfront but eliminates that cost entirely for assets properly funded into it. For a $300,000 estate, that 3% is $9,000 in probate fees. The trust often pays for itself many times over.
Can a trust protect my assets from creditors?
A revocable living trust does not provide creditor protection during your lifetime — because you retain full control of it, creditors can still reach those assets. Irrevocable trust structures can provide creditor protection, but they involve permanently giving up control and are a separate planning conversation. The primary purpose of a revocable trust is probate avoidance, incapacity planning, and privacy — not asset protection.
What happens to a trust when I die?
At your death, the trust becomes irrevocable. Your successor trustee takes over management and distribution according to the trust's terms — without probate, without court involvement, and typically within weeks rather than months. The successor trustee pays any outstanding debts and expenses, then distributes the remaining assets to your named beneficiaries.
Is a trust public record in Florida?
No. Unlike a will, which becomes a public court document when probated, a trust is a private document. Your beneficiaries receive distributions, but the terms of the trust — who receives what and under what conditions — remain private.
At what asset level does a trust make sense?
There is no fixed dollar threshold. The more relevant factors are: Do you own real estate in your sole name? Do you have accounts that are not already structured with beneficiary designations? Do you have a blended family or complex distribution wishes? Is privacy important to you? If the answer to any of those is yes, a trust is worth serious consideration regardless of total estate value.
General legal information only. Not legal advice. Statutes current as of publication date; consult an attorney for guidance specific to your situation.
Statutes Referenced: Fla. Stat. § 732.502 · §§ 732.101–732.103 · Fla. Stat. Chapter 733 · Fla. Stat. Chapter 736 · § 735.201
Get the Right Plan for Your Family
The right answer between a will and a trust depends on your assets, your family, and your goals. One conversation is usually enough to know which structure fits.
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Will vs. Trust at a Glance
| Will | Trust | |
|---|---|---|
| Avoids probate | ✗ | ✓ |
| Names guardian | ✓ | ✗ |
| Stays private | ✗ | ✓ |
| Covers incapacity | ✗ | ✓ |
| Multi-state assets | ✗ | ✓ |
| Lower upfront cost | ✓ | ✗ |
The Answer Depends on Your Specific Situation
There is no universal right answer between a will and a trust — only the right answer for your assets, your family, and your goals. What I can tell you from working with Florida families throughout the state is that the clients who most regret not having a trust are those who owned real estate, had accounts they forgot to update after a divorce, or watched a parent's modest estate spend nine months in probate when the whole thing could have been handled in three weeks. Stewart Law serves clients throughout Florida from our Melbourne office, with flat-fee pricing on standard estate planning documents.