Deciding between a will vs. a trust in Florida comes down to one practical question: do you want your assets to pass through probate court after you die, or do you want them to transfer privately without court involvement? A will is a set of instructions a Florida probate judge follows after your death. A trust is a separate legal arrangement that holds your assets now and transfers them later without a judge. Most sound Florida estate plans use both, because each tool handles problems the other cannot.
What Each Document Actually Does
A will is a written document that names who inherits your property, who manages the distribution (your personal representative), and who should raise your minor children. Nothing in it takes effect while you’re alive. When you die, someone files the will with the probate court, and the court supervises what happens next.
To be valid in Florida, a will must be made by someone at least 18 (or an emancipated minor) who is of sound mind.1Online Sunshine. Florida Code 732.501 – Who May Make a Will It must be in writing, signed by you at the end, and witnessed by two people who sign in your presence and in each other’s presence.2Online Sunshine. Florida Code 732.502 – Execution of Wills Florida does not recognize handwritten wills without witness signatures, no matter how clear your wishes.
A trust is an arrangement where you (the settlor) transfer ownership of assets to a trustee, who manages them for the beneficiaries you name. The most common type for estate planning is a revocable living trust, which you control during your lifetime and can change or cancel whenever you want. If you’re a Florida resident, the parts of your trust that distribute assets at death must be signed with the same formalities as a will: your signature plus two witnesses.3FindLaw. Florida Code 736.0403 – Trust Creation Requirements Online templates that skip the witnesses often fail on exactly the provisions that matter most.
The critical second step with a trust is funding it, which means retitling your assets into the trust’s name. A trust that owns nothing is an empty container. Bank accounts, investment accounts, and real estate all need to be formally transferred. This is where most trust-based plans fail in practice: the documents are fine, but the assets never moved.
Probate vs. Trust Administration
This is the biggest everyday difference. Assets that pass under a will go through probate, where a judge validates the will, appoints your personal representative, allows creditors to file claims, and eventually authorizes distribution. Assets properly titled in a trust skip the court entirely. The trustee distributes them under the trust’s terms without a judge.
Florida probate timelines vary. Simple estates can close in a few months, but formal administration commonly runs six months to a year, and anything contested or complex takes longer. Part of that delay is mandatory. Once the personal representative publishes a notice to creditors, creditors have three months to file their claims.4Online Sunshine. Florida Code 733.702 – Limitations on Presentation of Claims That clock runs regardless of how simple the estate is.
Probate also costs real money. Florida sets a presumptively reasonable attorney fee for estate administration on a tiered percentage. For a $500,000 estate, the attorney’s fee works out to roughly $12,000 under the statutory formula, and the personal representative is entitled to the same compensation on top of that. The fee schedule covers “ordinary services” only; litigation, tax disputes, or unusual issues can be billed separately.5Online Sunshine. Florida Code 733.6171 – Compensation of Attorney for the Personal Representative Trust administration avoids these statutory fees, though the trustee and any attorneys involved still charge for their work. The savings grow with the size of the estate.
Florida does offer a streamlined path called summary administration for estates valued at $75,000 or less, excluding exempt property, or when the person has been dead more than two years.6Online Sunshine. Florida Code 735.201 – Summary Administration It’s faster and cheaper than formal administration, but it still involves the court and still creates a public record.
Privacy
When a will enters probate, the file is accessible at the courthouse. The will, the beneficiaries, and the personal representative’s filings all become part of the record. Florida keeps inventories and accountings confidential from the general public, and clerks are prohibited from posting probate records online.7Florida Court Clerks & Comptrollers. How Do I Access Probate Records Even so, someone willing to walk into the clerk’s office can see most of the file.
A trust is private. It is never filed with a court unless a dispute arises. Your beneficiaries, the assets involved, and the terms of distribution stay between you, your trustee, and the people named in the document. Deeds transferring property into a trust still show up in public land records, so the trust’s existence isn’t a secret, but the terms are.
What Happens If You Become Incapacitated
This is where a trust earns its keep in ways most people don’t think about until it’s too late. A will does nothing while you’re alive. If an illness or injury leaves you unable to manage your finances, a will cannot help. Your family would need to open a court-supervised guardianship to gain authority over your assets, which is expensive, public, and slow.
A revocable living trust solves this. Because the trust owns your assets, the successor trustee you’ve named can step in and manage everything the moment you can no longer do so, without any court involvement.8Online Sunshine. Florida Code 736.0602 – Revocation or Amendment of Revocable Trust Bills get paid, investments stay managed, and your family avoids a guardianship fight. For many people, this alone justifies the cost of setting up a trust.
Florida Rules Neither Tool Can Override
Two Florida rules trip up people who assume a will or trust lets them leave property to anyone they choose.
Homestead
Under the Florida Constitution, you cannot leave your homestead to someone other than your spouse if you have a surviving spouse or minor children. You can leave it to your spouse even if you have minor children, but that’s the only exception.9Online Sunshine. Florida Code 732.4015 – Devise of Homestead Putting the home in a revocable trust does not sidestep this rule; Florida treats a homestead held in a revocable trust the same as one held in your own name. If your plan tries to leave the house to an adult child while your spouse is still alive, that provision is void, and the home passes under Florida’s default rules instead. This is one of the most common and costly mistakes in Florida estate planning.
The Surviving Spouse’s Elective Share
Even if your will or trust leaves your spouse nothing, Florida law guarantees a surviving spouse 30% of the “elective estate.”10Florida Senate. Florida Code 732.2065 – Amount of the Elective Share The elective estate is broader than probate assets alone and can include revocable trust assets, joint accounts, life insurance, and retirement accounts. Neither a will nor a trust defeats the elective share unless the spouse has waived it in a valid prenuptial or postnuptial agreement. If you’re in a second marriage with children from a prior relationship, this is where planning matters most.
Why Most People Need Both
Even people who set up a revocable trust usually need a will too, for two reasons.
First, only a will can nominate a guardian for your minor children. A trust can hold and manage money for a child, but the court looks to your will when deciding who raises them.
Second, not everything you own at death will necessarily be in the trust. You might buy property after creating the trust and forget to retitle it, inherit something in your own name, or overlook a bank account. A pour-over will catches those stray assets and directs them into your trust after you die.11Online Sunshine. Florida Code 732.513 – Devises to Trustee The catch: anything that passes through a pour-over will still goes through probate before reaching the trust. The pour-over will is a safety net, not a replacement for actually funding the trust during your lifetime.
What It Costs
A will costs less to create. Attorney fees for a straightforward will typically run from a few hundred dollars to around a thousand. A revocable living trust package (which usually includes the trust itself, a pour-over will, a power of attorney, and a healthcare directive) commonly runs $1,500 to $5,000 depending on complexity.
The trade-off shows up at death. A will-based plan triggers court filing fees, the statutory attorney fee schedule, personal representative compensation, and months of waiting. A funded trust bypasses all of that. On a $500,000 estate, the probate attorney’s statutory fee alone is roughly $15,000, with the personal representative entitled to the same amount. A $3,000 trust that was properly funded saves the estate several times that cost.
The worst outcome is an unfunded trust. You pay for the documents, then your family pays for probate anyway because the assets were never retitled. If you go the trust route, keeping assets properly titled over time is part of the cost of the plan.
Changing Your Mind Later
A will can be revised anytime by creating a new one or adding a codicil, but any change must follow the same execution rules as the original: writing, your signature, and two witnesses.2Online Sunshine. Florida Code 732.502 – Execution of Wills Most attorneys recommend a fresh will over stacking codicils, which can create conflicting provisions.
A revocable trust is presumed amendable and revocable unless its text says otherwise. You can amend it by whatever method the trust specifies, or by a later will that expressly references the trust, or by any other method showing clear and convincing evidence of your intent.8Online Sunshine. Florida Code 736.0602 – Revocation or Amendment of Revocable Trust
Irrevocable trusts work differently. Once established, you give up the right to change or cancel the trust, and in exchange the assets may receive favorable estate tax treatment and some protection from creditors. Florida law allows creditors to reach assets in an irrevocable trust only to the extent the trustee can distribute them back to the settlor.12Online Sunshine. Florida Code 736.0505 – Creditor Claims Against Settlor
Creditor Exposure
One point that cuts against the usual “trust is always better” story: a revocable trust offers no creditor protection during your lifetime. Florida treats revocable trust assets as if you still own them personally, so your creditors can reach them.12Online Sunshine. Florida Code 736.0505 – Creditor Claims Against Settlor Creditors can still make claims after death, too.
Probate, for all its downsides, actually provides a structured way to handle creditors. The three-month claims period forces them to come forward or lose the right to collect.4Online Sunshine. Florida Code 733.702 – Limitations on Presentation of Claims Trust administration lacks that automatic cutoff, and a trustee who distributes assets quickly could face personal liability if a creditor surfaces later. Some attorneys recommend opening a short probate even for trust-based estates, just to trigger the creditor claims period and get a clean cutoff date.
If your estate is modest, your family is uncomplicated, and your assets are already held in ways that pass outside probate (joint accounts, beneficiary designations), a well-drafted will may be all you need. If you own real estate, want privacy, worry about incapacity, or have an estate large enough that probate fees would take a serious bite, a revocable trust paired with a pour-over will is usually the stronger plan. Either way, the Florida-specific rules on homestead and the elective share set the outer limits of what you can do, and no document can rewrite them.