Will vs. Trust in Florida: How They Differ Under Florida Law
By Erik Newton, attorney. Admitted in Florida and Illinois.
In Florida, a will and a revocable living trust both say who receives property at death, but they reach that property in different ways. A will works through probate: until it is admitted to probate, a will is ineffective to prove title to the testator’s property (s. 733.103(1), Fla. Stat., as of October 2026). A revocable trust controls the property titled to it, and for a settlor domiciled in Florida when signing, its death provisions are invalid unless signed with the formalities of a Florida will (s. 736.0403(2)(b)). Florida plans commonly pair the two.
On this page
Side by side
| Will | Revocable living trust | |
|---|---|---|
| Signing | Signed at the end, before two attesting witnesses (s. 732.502(1), as of October 2026) | Death provisions need the same formalities (s. 736.0403(2)(b)) |
| During incapacity | No role | A successor trustee manages trust property under the trust’s terms |
| At death | Original deposited with the clerk within 10 days (s. 732.901(1)); probate | Trustee files a notice of trust (s. 736.05055(1)) |
| Estate debts | Paid in probate | Trust answers if the estate cannot pay (s. 733.707(3)) |
| Homestead limits | Apply (s. 732.4015(1)) | Apply (s. 732.4015(2)) |
| Minor children | Court considers a guardian named in a will (s. 744.312(3)(c)) | Can hold a child’s share under its terms |
Signing: the same formalities for both
A Florida will must be signed at the end by the testator, or by another person in the testator’s presence and at the testator’s direction, and the signing or acknowledgment must be in the presence of at least two attesting witnesses, who sign in the presence of the testator and of each other (s. 732.502(1), as of October 2026). A will can be made self-proved with the testator’s acknowledgment and the witnesses’ affidavits before a notary or other officer (s. 732.503(1)).
A revocable trust signed by a Florida domiciliary needs those same will formalities for its testamentary aspects, meaning the provisions that dispose of trust property at or after the settlor’s death other than to the settlor’s estate (s. 736.0403(2)(b)). The capacity needed to create, amend or revoke a revocable trust is the same as for making a will (s. 736.0601).
For people who move to Florida, a will executed by a nonresident is valid in Florida if it was valid where executed, unless it is holographic or nuncupative (s. 732.502(2)). A trust not created by will is valid if it complied with the law of the place where it was signed or of the settlor’s domicile at the time (s. 736.0403(1)).
What happens at death
With a will. Whoever holds the original will must deposit it with the clerk of the court within 10 days after learning of the death (s. 732.901(1), as of October 2026). The personal representative publishes a notice to creditors (s. 733.2121(1)), and most claims are barred unless filed by the later of 3 months after the first publication or, for a creditor who must be served, 30 days after service (s. 733.702(1)). A personal representative who is not domiciled in Florida must be a relative of the kinds s. 733.304 lists, such as a child, parent, sibling or spouse. Smaller estates may use summary administration when the will does not direct administration under chapter 733 and the Florida estate, less exempt property, does not exceed $150,000, or the decedent has been dead more than 2 years (s. 735.201).
With a revocable trust. Property titled to the trustee passes under the trust’s terms. The trustee files a notice of trust with the court, which must contain the settlor’s name and date of death, the trust’s title and date, and the trustee’s name and address (s. 736.05055(1) and (2)). Within 60 days after learning the trust has become irrevocable, the trustee must notify the qualified beneficiaries of the trust’s existence and their right to a copy (s. 736.0813(1)(b)). The trust is liable for the estate’s expenses and obligations to the extent the probate estate cannot pay them (s. 733.707(3)). For an ordinary revocable trust with an individual trustee, chapter 736, the Florida Trust Code, has no residency rule for trustees like the one in s. 733.304.
During incapacity
A will has no role while its maker is alive. A revocable trust names a successor trustee who can manage the trust property under the trust’s terms. Property outside the trust is managed under a durable power of attorney, if there is one, and an agent can amend or revoke the trust only if the trust explicitly allows it and the principal signed or initialed next to that power (s. 709.2202(1)(b), as of October 2026). More in the Durable Power of Attorney guide.
Guardians for minor children
When a court appoints a guardian, it must consider any person designated as guardian in any will in which the ward is a beneficiary (s. 744.312(3)(c), as of October 2026). A will is not the only way to name one in Florida. Parents can also sign a separate declaration naming a preneed guardian for a minor child, signed before two attesting witnesses and filed with the clerk; producing it in the guardianship proceeding creates a rebuttable presumption that the named person is entitled to serve (s. 744.3046(2) to (4)). A trust, for its part, can hold and manage a child’s inheritance under the terms the parent sets.
Rules that apply either way
- Homestead. If the owner is survived by a spouse or a minor child, the homestead cannot be devised, except to the spouse when there is no minor child, and a disposition by a revocable trust counts as a devise (s. 732.4015(1) and (2), as of October 2026).
- The spouse’s elective share. A surviving spouse of a Florida domiciliary may elect 30 percent of the elective estate (ss. 732.201 and 732.2065), which includes both the probate estate and property the decedent could revoke at death, such as a revocable trust (s. 732.2035(1) and (5)).
- Divorce. Provisions affecting a former spouse are void on dissolution of the marriage, in a will (s. 732.507(2)) and in a revocable trust (s. 736.1105(2)), subject to listed exceptions.
- Creditors during life. Revocable trust property is subject to the settlor’s creditors during the settlor’s lifetime, to the extent it would not be exempt if owned directly (s. 736.0505(1)(a)).
Using both: the pour-over will
A will can leave property to the trustee of an existing trust, and that gift is valid even though the trust is amendable or revocable (s. 732.513(1) and (2)(a), as of October 2026). This “pour-over” will catches property never moved into the trust, but that property reaches the trust through probate (s. 733.103(1)). So a trust-based plan depends on titling property to the trust. The Revocable Living Trust guide covers funding and the trust in more detail.
Frequently asked questions
Does a will avoid probate in Florida?
No. A will is ineffective to prove title to the testator’s property until it is admitted to probate (s. 733.103(1), as of October 2026).
Is a will still needed with a trust in Florida?
Florida plans commonly include a pour-over will that leaves anything outside the trust to the trustee (s. 732.513, as of October 2026). A court appointing a guardian for a minor child must also consider a guardian named in a will under which the child is a beneficiary (s. 744.312(3)(c)).
What happens in Florida if someone dies without a will or trust?
The intestacy statute decides. The surviving spouse takes everything if there are no descendants, or if all descendants are also the spouse’s and the spouse has no other descendants; otherwise the spouse takes one-half (s. 732.102, as of October 2026). What does not pass to the spouse goes first to the descendants (s. 732.103(1)).
Is a revocable trust private in Florida?
The trust instrument is not part of the notice of trust, which must contain the settlor’s name and date of death, the trust’s title and date, and the trustee’s name and address (s. 736.05055(2), as of October 2026). A will, by contrast, is deposited with the clerk after death (s. 732.901(1)).
Next step
Plan Ahead prepares Revocable Living Trusts together with a pour-over Last Will and Testament. Planning meetings are by Zoom; signings take place in person, at the client’s home or at our Lake Worth Beach office, with two witnesses and a notary provided by the firm. Schedule a Peace of Mind Planning Session, or see the other Florida planning documents on the Florida page.
Related reading
- Revocable Living Trust in Florida: How It Works Under Florida Law
- Florida Last Will and Testament: How a Valid Will Works
- Protecting Minor Children in a Florida Estate Plan
This article is for informational purposes only and is not legal advice. No attorney-client relationship is formed by reading it.
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