In Florida, a Revocable Living Trust is essentially an empty vessel with written instructions. Signing the trust document creates the legal framework, but if assets are not officially retitled into the name of the trust—a process known as funding—the trust cannot govern or transfer those assets upon your death or incapacity.
Here is an in-depth look at what happens in Florida when a trust remains unfunded, the legal consequences, and how Florida law resolves the gap.
1. The Core Problem: Loss of Probate Avoidance
The primary reason individuals establish revocable living trusts in Florida is to keep their assets out of probate court.
If Funded:Specifically, assets owned by ‘John Doe, as Trustee of the John Doe Revocable Trust’ pass directly to beneficiaries via the successor trustee according to the terms of the trust, bypassing probate court entirely.
If Unfunded: Any asset that remains in an individual’s personal name at death (e.g., “John Doe”) forms part of the decedent’s probate estate. The trust document holds no legal authority over these individually titled assets.
2. The Legal Safety Net: The Florida “Pour-Over Will”
To protect against unfunded or forgotten assets, a properly executed Florida estate plan includes a Pour-Over Will.
How it works: The Pour-Over Will acts as a catch-all safety net. It states that any asset remaining in the individual’s name at death should be transferred (or “poured over”) into the trust.
The Catch:A Pour-Over Will must go through Florida Probate Court.
The Process:During this process, the court appoints a Personal Representative to collect the unfunded assets, satisfy valid creditor claims under Florida Probate Rules, and then transfer the remaining net assets to the trustee to distribute according to the trust’s instructions.
The Outcome: The wishes outline in the trust are eventually honored, but the estate experiences the exact court delays (6 to 12+ months), public record disclosures, and legal/court costs that the trust was designed to prevent.
3. What Happens If There Is No Pour-Over Will?
If a trust is unfunded and the creator (settlor) dies without executing a Pour-Over Will (or any valid Will):
Intestacy Laws Take Over: The unfunded assets pass according to Florida’s intestate succession laws (Fla. Stat. § 732.101 et seq.), which default to statutory family order (surviving spouse, adult children, parents, siblings).
Accidental Disinheritance:Furthermore, the trust’s provisions, such as leaving equal shares to children, funding charities, or holding money in trust for minors, are bypassed completely for those unfunded assets.
Key Complications Specific to Unfunded Trusts in Florida
Consequently, if real estate is not deeded to the trust using a properly drafted Quitclaim or Warranty Deed (specifying trust powers under Fla. Stat. § 689.073), the home remains individual property.
Upon death, the homestead therefore requires a court proceeding (a Petition to Determine Homestead) to pass free of claims to legal heirs, regardless of what the trust document outlines.
B. Loss of Incapacity Protection
A key function of a Florida revocable trust is managing assets if the creator becomes incapacitated (e.g., due to dementia or stroke).
Funded Trust: The successor trustee steps in smoothly to manage trust assets without court involvement.
Unfunded Trust: The successor trustee has no authority over individually owned bank accounts or real estate. Family members must instead rely on a Durable Power of Attorney or petition a Florida court for a costly Guardianship proceeding.
C. Exposure of Financial & Personal Privacy
Once probate is opened to catch unfunded assets, the estate inventory, financial balances, names of heirs, and trust references become part of the public court record in the county where the probate is filed.
Summary of Consequences
Scenario
Fully Funded Florida Trust
Unfunded Trust (with Pour-Over Will)
Unfunded Trust (NO Pour-Over Will)
Probate Required?
No (Bypasses court entirely)
Yes (Formal or Summary Administration required)
Yes (Must go through Intestate Probate)
Distribution Time
Immediate or within weeks
6 to 12+ months
6 to 12+ months
Privacy
Private (Kept out of court records)
Public (Will and asset inventories filed with court)
Public (Filed with court)
Who Inherits?
Trust Beneficiaries
Trust Beneficiaries (after probate completion)
Statutory Heirs under Florida Intestacy Laws
How Funding Is Completed in Florida
To fund a trust properly under Florida law:
Real Estate: Draft and record a deed transferring title from the individual to the trust in the county where the property is located.
Financial Accounts: Change account ownership at banks and brokerages to the trust’s name.
Beneficiary Designations: Update primary or contingent beneficiary forms for life insurance policies, retirement accounts (IRAs/401ks), or Pay-on-Death (POD) accounts where appropriate.
Florida Revocable Living Trust Funding Checklist
A Revocable Living Trust cannot avoid probate or manage assets until those assets are retitled into the trust’s name. Follow this streamlined checklist to ensure your trust is properly funded under Florida law.
Essential Prerequisites
Certificate of Trust (Fla. Stat. § 736.1017): Provides banks, brokers, and title companies proof of trustee authority without exposing private beneficiary details.
Standard Trust Titling Format: [Trustee Name(s)], Trustee(s) of the [Trust Name], dated [Execution Date]
Quick-Action Asset Checklist
1. Bank Accounts & Cash Assets
Checking & Savings: Present your Certificate of Trust at your bank to retitle existing accounts or open new trust accounts.
Certificates of Deposit (CDs): Confirm in writing first that the bank will waive early withdrawal penalties for trust transfers before retitling.
Safe Deposit Boxes: Execute a new lease naming the trust or trustee to ensure immediate successor access.
2. Florida Real Estate
Deed Execution: Record a Quitclaim or Special Warranty Deed transferring title to the trustee.
Statutory Protection (Fla. Stat. § 689.073):To be valid under Florida law, the deed must explicitly grant the trustee full power to sell, lease, or encumber property.”
Preserve Homestead Exemptions: Include homestead occupancy rights in the deed/trust to safeguard tax caps (Fla. Admin. Code 12D-7.011) and creditor exemptions (Fla. Const. Art. X, § 4).
3. Motor Vehicles & Vessels (FLHSMV)
Selective Retitling: Under Fla. Stat. § 319.28, Florida allows heirs to transfer simple vehicle titles outside probate. We primarily recommend retitling high-value vehicles, RVs, or boats directly into the trust via FLHSMV Form HSMV 82040.
4. Investment Accounts & Non-Probate Assets
Brokerage Accounts: Submit ownership change forms to custodians (Schwab, Fidelity, Vanguard) along with your Certificate of Trust.
Life Insurance: Assign the trust as the primary or contingent beneficiary to ensure immediate, unencumbered payout administration.
Tax-Deferred Accounts (IRAs/401ks):However, do not retitle ownership, as this triggers immediate tax liabilities. Instead, update beneficiary designations carefully following SECURE Act 2.0 guidelines.
Complete Your Trust Execution with Experienced Counsel
Ensure your real estate, financial accounts, and business assets are properly structured under Florida law. Contact our South Florida estate planning team today:
Direct Telephone: (954) 866-4878 | Toll-Free: 954-866-HURT
Coral Springs Office: 9625 W. Sample Rd, Coral Springs, FL 33065
Fort Lauderdale Office: 2933 W. Cypress Creek Rd, Suite 201, Ft. Lauderdale, FL 33309
Website: mypersonalattorneys.com
Local Coverage: Coral Springs, Fort Lauderdale, Parkland, Tamarac, Margate, and all surrounding areas of Broward County
A revocable living trust in Florida is an estate planning arrangement that allows a person to manage property during their lifetime and establish how that property will be managed or distributed after death. Because the trust is revocable, the person who creates it generally retains the ability to change or revoke it while they have the required capacity.
For many Florida families, the appeal of a revocable living trust is not simply avoiding probate. A properly structured and funded trust can also provide a framework for managing assets during incapacity, establish clear instructions for what happens after death, and give a successor trustee authority to step in when the original trustee can no longer serve.
But a trust only works as intended when the legal document, the ownership of the property, and the rest of the estate plan are coordinated.
What Is a Revocable Living Trust?
A revocable living trust is a legal arrangement created during a person’s lifetime.
The person who creates the trust is commonly called the settlor or grantor. The person responsible for managing property held by the trust is the trustee. The people or organizations who are intended to receive trust property are the beneficiaries.
One of the most common arrangements is for the person creating the trust to serve as the initial trustee. That allows the person to continue managing their property much as they did before creating the trust.
The trust document establishes the rules for managing the property and identifies what should happen if the creator becomes incapacitated or dies.
Florida’s Trust Code generally permits a settlor to revoke or amend a trust unless the trust terms make it irrevocable.
What does “revocable” mean?
It means the trust can generally be changed or terminated during the settlor’s lifetime, subject to the terms of the trust and applicable Florida law.
That flexibility is one of the defining characteristics of a revocable living trust. Creating one does not ordinarily mean giving up control of your property immediately.
Who Is Involved in a Revocable Trust?
A typical revocable living trust involves several roles.
Settlor or grantor
The settlor is the person who creates the trust and transfers property into it.
An individual can create a trust for their own benefit, while a married couple may use a joint or coordinated estate planning structure depending on their circumstances.
Trustee
The trustee manages property held by the trust according to its terms.
In a common revocable trust arrangement, the settlor also serves as trustee during their lifetime. This allows the person to continue managing trust property while they are able to do so.
Successor trustee
The successor trustee is the person or institution designated to take over management when the original trustee can no longer serve.
Choosing this person is an important part of the planning process. The successor may eventually be responsible for managing trust property during incapacity and administering the trust after death.
Beneficiaries
Beneficiaries are the people or organizations who are intended to benefit from the trust.
The trust can establish who receives property, when they receive it, and under what conditions or instructions the trustee must administer it.
What Happens While You Are Alive?
A revocable living trust is not simply a document that sits in a drawer until someone dies.
If you are the settlor and trustee, you can generally continue using and managing trust property according to the terms of the trust. You can also generally amend the trust as circumstances change.
That can make the trust useful as part of lifetime estate planning, rather than simply as a death-transfer document.
For example, your estate plan may need to change because of:
Marriage or divorce
The birth or adoption of a child
A beneficiary’s changing circumstances
A change in property ownership
The purchase or sale of real estate
A change in the person you want to serve as successor trustee
Changes in your financial circumstances
The trust should therefore be reviewed when major life or financial changes occur.
Alan J. Reinfeld:“A revocable trust is not simply a document you sign and put away. It is a way of organizing your property so that someone you trust can manage it if you become unable to do so and carry out your instructions after your death.”
What Happens If You Become Incapacitated?
One of the important differences between a revocable trust and a basic will is what the trust can do during your lifetime.
If you become unable to manage your financial affairs, a properly structured trust can allow your successor trustee to step in and manage property held by the trust.
The Florida Bar identifies this as one of the potential advantages of a revocable trust. Depending on the circumstances, the successor trustee may be able to continue managing trust assets, paying bills, and making financial decisions without requiring a court-appointed guardian of the person’s property.
This does not mean a trust eliminates every possible incapacity issue. The trust needs to be properly drafted, and the relevant assets need to be held or otherwise coordinated with the trust.
What Does “Funding” a Trust Mean?
Funding a trust means transferring appropriate property into the trust or otherwise coordinating ownership so that the trust can actually operate as intended.
This is one of the most important and frequently misunderstood parts of trust planning.
Signing a trust agreement does not automatically place every asset you own into the trust.
For example, if a person creates a revocable trust but leaves an important asset titled solely in their individual name, that asset may not receive the same probate-avoidance treatment as property properly held by the trust.
The Florida Bar specifically warns that assets such as real estate, bank accounts, and investments generally need to be formally transferred to the trust to obtain the maximum benefit from the arrangement.
That is why creating the document is only one part of establishing a functioning trust plan.
Alan J. Reinfeld: “One of the most important parts of creating a trust happens after the document is signed. If an asset is supposed to be managed through the trust, the ownership needs to be properly coordinated with the trust. An unfunded trust may not accomplish what the person who created it expected.”
What assets can be placed in a trust?
The answer depends on the type of asset, its ownership structure, applicable law, beneficiary designations, and the objectives of the estate plan.
Real estate, financial accounts, investments, and other property may potentially be coordinated with a trust, but they should not all be treated identically.
For a more detailed discussion of this issue, see What Assets Can a Trust Hold in Florida?
That distinction matters because what a trust is and what should be placed into a trust are related but separate estate planning questions.
Does a Revocable Trust Avoid Probate in Florida?
A properly funded revocable trust can allow property held by the trust to pass to beneficiaries without going through the ordinary probate process.
The reason is straightforward: the trustee already has authority to manage the trust property. The property does not have to be transferred from the deceased person’s individual ownership through a probate proceeding in the same way individually owned assets generally do.
However, saying that a revocable trust “avoids probate” without qualification is misleading.
The trust does not automatically control everything you own.
Assets that were never properly transferred to the trust may still require another method of administration after death. A pour-over will is commonly used as part of a revocable trust estate plan to address property that remains outside the trust.
Other assets may pass outside probate for entirely different reasons, including certain joint ownership arrangements or valid beneficiary designations.
So the real question is not simply:
“Did I sign a trust?”
It is:
“Is the property I want handled through the trust actually coordinated with the trust?”
What Happens to a Revocable Trust After Death?
When the settlor dies, the revocable trust generally becomes an important part of the estate administration process.
The successor trustee may need to:
Identify and secure trust property.
Review the trust’s instructions.
Determine what expenses and obligations must be addressed.
Deal with claims and required administration.
Manage or sell property when authorized or necessary.
Distribute property to the beneficiaries according to the trust terms.
Avoiding ordinary probate does not mean that nothing has to be done after death.
Trust administration can still involve legal, financial, and tax issues. Florida law also contains specific procedures involving a Notice of Trust in certain circumstances following a settlor’s death.
The successor trustee therefore has real responsibilities. The person chosen for that role should be capable of following the trust instructions and handling the administrative work that follows.
Devin P. Tison:“The best estate plan is one that makes the owner’s intentions clear before the family is forced to interpret them under pressure. A trust can provide that structure, but the document and the ownership of the assets need to work together.”
Revocable Trust vs. Will: What Is the Difference?
A will and a revocable living trust can serve different functions and are often used together.
A will generally takes effect at death and can identify beneficiaries, nominate a personal representative, and address property that passes through probate.
A revocable trust can operate during the settlor’s lifetime and can provide a framework for managing trust property during incapacity and after death.
A person who uses a revocable trust will commonly also have a will as part of the broader estate plan.
The important point is that a trust is not necessarily a replacement for every other estate planning document.
Does a Revocable Living Trust Protect Assets From Creditors?
Not generally for the person who created the trust.
This is an important correction to a common misconception about living trusts.
Under Florida Statutes §736.0505, property held in a revocable trust remains subject to the claims of the settlor’s creditors during the settlor’s lifetime to the extent that the property would have been reachable if the settlor owned it directly.
A revocable living trust should therefore not be presented as an automatic asset-protection device.
Different rules can apply to irrevocable trusts and to protections available to beneficiaries, which is a separate and more specialized area of trust planning.
Does a Revocable Trust Automatically Save Estate Taxes?
No.
A standard revocable living trust should not be described as an automatic estate-tax reduction strategy.
There can be circumstances in which trust planning is incorporated into a broader estate-tax strategy, including specialized provisions and irrevocable trusts. But those issues depend on the size and structure of the estate, the people involved, the applicable tax rules, and the objectives of the plan.
For 2026, the federal basic estate tax exclusion is $15 million per decedent.
That makes the tax discussion very different from older explanations that use figures such as $5.34 million or $10.68 million.
For a detailed discussion, see Can a Revocable Living Trust Reduce Estate Taxes in Florida?
The key distinction is simple: a revocable trust can be an important estate planning tool without being, by itself, an estate-tax savings strategy.
Revocable vs. Irrevocable Trusts
The difference between revocable and irrevocable trusts is fundamental.
A revocable trust generally allows the settlor to retain substantial control and the ability to amend or revoke the trust.
An irrevocable trust generally involves a greater restriction on the settlor’s ability to change or reclaim the trust property.
Irrevocable trusts can serve specialized estate planning, tax planning, and asset-protection purposes, but they involve different legal consequences and should not simply be treated as a more powerful version of a revocable trust.
For that reason, choosing between them requires looking at the purpose of the plan rather than starting with the assumption that one type is always better.
Who Should Consider a Revocable Living Trust in Florida?
A revocable living trust may be worth considering for people who want a structured plan for managing property during life and transferring it after death.
It can be particularly relevant when someone:
Owns Florida real estate or other significant property
Wants a successor trustee prepared to manage trust property during incapacity
Wants to organize the administration of an estate before death
Wants certain properly funded assets to pass outside ordinary probate
Has a family situation requiring more detailed instructions than a simple will may provide
Wants a coordinated estate plan that can be reviewed as circumstances change
But a trust is not automatically necessary for every Florida resident.
The right estate plan depends on the person’s property, family circumstances, goals, existing ownership arrangements, and the complexity of the intended plan.
Common Revocable Trust Mistakes
Some of the biggest problems with revocable trusts occur after the document has been signed.
Creating the trust but failing to fund it
A trust that does not actually hold the relevant property may not accomplish the probate-avoidance objectives the creator expected.
Treating every asset the same way
Different forms of property may require different ownership or beneficiary arrangements. Retitling everything without considering those differences can create unintended consequences.
Choosing a successor trustee casually
The successor trustee may eventually be responsible for substantial financial and administrative decisions. This should not be an afterthought.
Never reviewing the plan
A trust created years ago may no longer reflect current property, beneficiaries, family relationships, or financial circumstances.
Assuming the trust solves every estate planning issue
A revocable trust does not automatically provide creditor protection, eliminate taxes, or replace every other estate planning document.
Devin P. Tison: “Creating a trust does not automatically solve every estate planning problem. The important question is whether the trust was properly structured, whether the relevant assets were actually placed into it, and whether the plan addresses what happens when circumstances change.”
Frequently Asked Questions About Revocable Living Trusts in Florida
Is a revocable living trust the same as a living trust?
Generally, the terms are used to describe a trust created during the settlor’s lifetime. A revocable living trust is specifically a living trust that the settlor can generally amend or revoke under its terms and applicable law.
Does a revocable trust avoid probate in Florida?
Properly funded trust assets can generally pass to beneficiaries without going through ordinary probate. However, creating a trust does not automatically place every asset into it, and assets outside the trust may require another method of administration.
Can I still use my property after putting it in a revocable trust?
In a typical arrangement where the settlor remains trustee and beneficiary, the settlor can generally continue to manage and use trust property during life according to the trust terms.
What happens to my trust if I become incapacitated?
A properly drafted trust can allow a successor trustee to step in and manage trust property if the original trustee can no longer do so. This can help avoid the need for a court-appointed guardian of property in appropriate circumstances.
Does a revocable trust protect my assets from lawsuits?
A revocable trust generally does not protect the settlor’s assets from the settlor’s own creditors during life. Florida law specifically addresses creditors’ ability to reach revocable-trust property.
Does a revocable trust reduce estate taxes?
Not automatically. Tax planning may involve trusts and other strategies, but a standard revocable living trust should not be presented as an automatic estate-tax reduction tool.
Do I still need a will if I have a revocable trust?
Often, yes. A will can address property that was not transferred to the trust and can serve other estate planning purposes. The exact documents needed depend on the overall estate plan.
Planning a Revocable Living Trust in South Florida
For families in Coral Springs, Fort Lauderdale, Broward County, and throughout South Florida, creating a revocable living trust should be approached as an estate planning process rather than simply the preparation of a document.
The trust agreement is one part of the plan. Ownership of property, beneficiary designations, successor trustee arrangements, wills, and the person’s broader estate planning objectives also need to work together.
If you are considering a revocable living trust, the important questions are not simply whether a trust is popular or whether someone else has one. The important questions are what you want the trust to accomplish, what property should be coordinated with it, and what should happen if you become incapacitated or die.
Related Trust Planning Resources
What Assets Can a Trust Hold in Florida?
Can a Revocable Living Trust Reduce Estate Taxes in Florida?
Revocable vs. Irrevocable Trusts in Florida
What Happens If a Trust Is Not Properly Funded?
What Happens to a Trust After Someone Dies in Florida?
Florida Lady Bird Deed vs. Revocable Living Trust for Real Estate
Estate planning involves several legal terms that can be confusing if you are encountering them for the first time. Will, trust, and probate are among the most important.
Although these concepts are related, they serve different purposes. Understanding the basic differences can help you determine what questions to discuss with an estate planning attorney in Coral Springs and throughout South Florida.
What Is a Will?
A will is a legal document that provides instructions for what should happen to certain property after a person dies. In Florida, a valid will must meet specific legal requirements concerning its execution and witnessing.
A will can identify the beneficiaries who should receive probate assets and can name the person who should serve as the estate’s personal representative, which is Florida’s term for what many people call an executor.
A will can also be used to nominate a guardian for minor children.
Importantly, a will does not necessarily control every asset a person owns. Certain assets may pass outside probate through beneficiary designations, joint ownership, or other arrangements.
A will also does not take effect during the person’s lifetime. It becomes operative at death.
What Is a Trust?
A trust is a legal arrangement in which property is held and managed by a trustee for the benefit of one or more beneficiaries.
Unlike a will, a trust can operate during a person’s lifetime. For example, a revocable living trust can allow someone to continue managing property during life while establishing instructions for what should happen if that person becomes incapacitated or dies.
A trust can therefore serve purposes that go beyond distributing property after death. Depending on how it is structured and funded, it may provide a framework for managing assets during incapacity, distributing property to beneficiaries over time, and avoiding probate for assets properly transferred to the trust.
A useful way to think about a trust is as an ongoing legal arrangement for managing property. The person who creates the trust establishes its terms, a trustee manages the trust property, and beneficiaries receive the benefits according to those terms.
What Is Probate?
Probate is the court-supervised legal process used to administer a deceased person’s probate estate.
In Florida, probate generally involves identifying and gathering the decedent’s probate assets, addressing valid debts and expenses, and distributing the remaining assets to the appropriate beneficiaries.
Probate does not necessarily involve every asset a person owned. Some property may pass outside probate through a trust, beneficiary designation, joint ownership, or another legal mechanism.
Florida has different probate procedures depending on the circumstances of the estate, including formal administration and summary administration.
Will vs. Trust: What Is the Difference?
A will and a trust can both be part of an estate plan, but they work differently.
The most basic distinction is that a will generally operates after death, while a properly created and funded trust can operate during a person’s lifetime as well as after death.
Other differences may also matter when deciding how an estate plan should be structured.
Probate
Assets that are distributed through a will generally pass through probate. Assets properly held in a trust may generally be distributed by the trustee without going through the probate process for those assets.
This distinction is one reason some people use trusts as part of a broader plan to simplify the transfer of assets after death.
Privacy
Probate is a court process, while the administration of a private trust generally does not operate in exactly the same public court process.
For people who place a high value on privacy, this can be an important consideration when discussing a trust with an estate planning attorney.
Incapacity Planning
A will does not provide a mechanism for managing a person’s property while that person is alive but unable to manage it because of incapacity.
A properly structured trust can provide instructions for who will manage trust property if the person who created the trust becomes unable to do so.
Other estate planning documents, including powers of attorney and advance directives, may also be important for incapacity planning.
A trust can provide instructions for how and when trust assets should be distributed to children, grandchildren, or other beneficiaries. For example, the trust may establish that assets should be managed for a beneficiary rather than distributed to that person all at once.
Cost and Administration
A trust can involve greater upfront planning and administration than a basic will. Particularly because assets generally need to be properly transferred to and managed through the trust.
That does not mean a trust is always more expensive overall. The appropriate comparison depends on the person’s circumstances. For example the type of trust involved, the assets being managed, and the complexity of the estate plan.
Management of Assets
A will provides instructions for property at death, while a trust involves the ongoing management of property placed into the trust.
This distinction is important. Simply creating a trust does not automatically place every asset a person owns into that trust. Proper funding and coordination with the rest of the estate plan are essential.
How Do Wills, Trusts, and Probate Work in Florida?
Florida law governs the creation and administration of estates for people whose estates are subject to Florida jurisdiction. Florida also uses the term personal representative for the person appointed to administer a probate estate.
The Florida probate process can take different forms depending on the circumstances of the estate. For example, formal administration may be used for more complex estates, while summary administration may be available when the estate meets certain requirements.
Florida residents may also use trusts and other estate planning tools to determine how property will be managed and transferred. Whether a particular strategy is appropriate depends on the person’s assets, family circumstances, and estate planning goals.
For someone in Coral Springs, Fort Lauderdale, or elsewhere in Broward County, an estate plan should therefore be evaluated under the laws and procedures that apply in Florida rather than relying solely on general estate planning information from another state.
Can You Have Both a Will and a Trust?
Yes.
A trust and a will are not necessarily competing alternatives. Many estate plans use both.
For example, a person may establish a revocable living trust to hold and manage certain assets while also maintaining a will that addresses matters the trust does not cover, including the nomination of a guardian for minor children.
The way these documents work together depends on the individual’s circumstances and the structure of the estate plan.
Which Is Better: A Will or a Trust?
There is no single answer that applies to every family.
For some people, a will may address their primary estate planning needs. Others may benefit from a trust because they want a plan for managing assets during incapacity, controlling how beneficiaries receive property, or keeping certain assets outside the probate process.
The answer can depend on factors such as:
The type and value of your assets
Whether you own real estate
Whether you have minor children
Your family circumstances
Whether you want a plan for possible incapacity
How you want beneficiaries to receive their inheritance
Whether avoiding probate is an important goal
The complexity of your estate
An estate planning attorney can review these factors and explain which documents may be appropriate for your circumstances.
Frequently Asked Questions About Wills, Trusts, and Probate in Florida
Does a Will Avoid Probate in Florida?
Generally, no. Assets that pass under a will are typically subject to the Florida probate process unless another legal arrangement causes those assets to pass outside probate.
Does a Trust Avoid Probate in Florida?
A properly created and funded trust can generally allow assets held by the trust to pass to beneficiaries without going through probate. However, creating a trust alone does not automatically place all of a person’s assets into the trust.
Do I Need Both a Will and a Trust in Florida?
Not necessarily. Some people may have estate planning needs that can be addressed primarily through a will, while others may benefit from a trust and additional estate planning documents. The appropriate combination depends on the person’s circumstances and goals.
Estate Planning in Coral Springs and South Florida
Wills, trusts, and probate are closely related, but they solve different legal problems. Understanding the terminology is a useful first step, but creating an effective estate plan requires looking at how the different documents and assets work together.
When it comes to estate planning, we at Reinfeld & Cabrera P.A. are here to tell you how, together with proper estate planning, a living trust saves estate taxes. As the old saying goes, “nothing is certain but death and taxes”, however did you know that with a living trust and proper estate planning you could reduce or even eliminate estate taxes? If you are still not convinced that you should invest your time in a living trust with an attorney who is well versed in estate planning we suggest you keep reading!
So what is a living trust (also called a revocable living trust)? Basically it is a document that contains instructions about what should happen to your assets when you die. It differs from a will in the fact that it gives you the opportunity to avoid probate at death. A living trust gives YOU control over the assets you leave to minor children and/or grandchildren, and if you become incapacitated it prevents the court from controlling your assets.
Now that you know what a living trust is, the next question you are probably asking is how does a living trust save estate taxes. The first important thing to do when it comes to creating a living trust is to ensure that both you and your spouse utilize your estate tax exemptions. When working with your attorney on your estate planning chat about inserting a tax-planning provision into your living trust which will split the total amount of each spouses estate into two equal trusts. Simply by planning ahead both spouses are able to use their tax exemptions and pay no estate tax.
If, for example, you and your spouse have a combined estate value of $10,680,000 by creating a living trust and utilizing your tax exemption through a tax-planning provision you could split your combined estate into two trusts of $5,340,000.00 , each and save on estate taxes when you and/or your spouse passes away. When you die your trust will use your 5,340,000.00 exemption and then when your spouse dies their trust will use their 5,340,000.00 exemption thus reducing your taxable estate to $0. This way the value of your estate will go to your beneficiaries.
The other benefit of estate planning making use of a living trust is that you can maintain control over how your part of the estate is managed and distributed. Furthermore the assets in your estate will be valued and taxed only at your death and any appreciation after you pass away will not be included in your spouse’s estate. The assets in your trust will, however, be available to your spouse if they need.
While this estate planning feature is only available to married couples, there are other options to help save you taxes if you are single. Simply give one of our experienced estate planning attorney’s at Reinfeld & Cabrera P.A. a call to discuss what options are available to you.
Elder law attorneyAlan J. Reinfeld from Reinfeld & Cabrera, PA. is experienced when it comes to helping you with your preplanning arrangements. While preplanning is a highly recommended practice when it comes to your funeral arrangements and estate planning it also comes with its pitfalls. The knowledgeable elder law attorneys at Reinfeld & Cabrera will be able to help you with all considerations to ease you and your family through this difficult process.
Preplanning arrangements are fantastic when it comes to making sure that your family does not have to worry about your funeral or estate after you are gone. It also ensures that your wishes are carried out and that there are sufficient funds left to finance your funeral and cover any other costs that may occur. However, you will need to consult a good elder law attorney to make sure that all of your bases are properly covered and that your preplanning arrangements are legally and financially sound. It is an unfortunate reality that many people try to take advantage of the elderly and the emotional stresses of preplanning by offering unsound legal advice or general preplanning documents which are not tailored to suit your specific needs. It would be a shame for all your preplanning arrangements to go to waste for an issue which could have easily been avoided by referring to a qualified elder law attorney.
A massive pitfall of the preplanning process is the prepaying of services. Recently, some services offering preplanning and prepaying programs have been found to misuse and misspend the money entrusted to them. To prevent this potentially devastating event from occurring, it is prudent that you seek advice from a trusted elder law attorney concerning finding a preplanning and prepaying option which will save you and your family unnecessary costs.
Whatever your decision or wishes are when it comes to preplanning arrangements for your funeral and estate, the attorneys at Reinfeld & Cabrera always have your best interests at heart and will help you through this immensely emotional process.
One of the first things families often discover after a death is that the law does not treat everything a person owned in the same way.
A house may be treated differently from a bank account. A retirement account may pass directly to a beneficiary. A jointly owned property may never become part of the probate estate. A will may control some assets but have no effect on others.
So when a loved one dies, the first legal question is not simply : “Who inherits?”
It is:
What happens to each of the things the person left behind?
That question leads into probate, but probate is only part of the picture.
The estate begins with an inventory, not a distribution
Suppose someone dies owning a house, two bank accounts, an IRA, a life insurance policy, a car, and personal belongings.
It would be easy to imagine that all of those things are gathered together into one estate and then divided among the heirs.
Florida law does not work that neatly.
An account with a valid beneficiary designation may pass directly to the named beneficiary. Certain jointly owned property may pass to the surviving owner. Life insurance and retirement accounts can also transfer according to their beneficiary designations rather than through the probate process.
Other property may become part of the probate estate and have to be administered through the court system.
21This distinction can completely change what happens after a death.
It also explains why finding the will is only one part of the initial investigation. The ownership documents, deeds, account agreements, beneficiary designations, and other estate planning documents may be just as important.
The Florida Bar describes probate as the process of identifying and gathering probate assets, paying valid obligations, and distributing what remains to the people entitled to receive it.
A will tells the court what the deceased wanted. It does not eliminate the legal process.
A valid will is important, but it does not simply cause property to change hands the moment someone dies.
The will is presented to the probate court, and the person nominated to administer the estate generally becomes the personal representative once appointed and qualified.
Florida deliberately uses “personal representative” as the general legal term rather than relying on terms such as executor or administrator.
That person then has legal authority over the probate estate and corresponding responsibilities.
This is an important distinction for families.
Someone named in a will does not simply become the owner of the estate. The personal representative may first have to identify and protect the assets, determine what the estate owes, deal with creditors, resolve claims, and determine what can ultimately be distributed.
The will provides instructions. Probate is the legal machinery through which those instructions are carried out.
And if there is no will?
The absence of a will does not mean that everything becomes uncertain.
It means Florida’s intestacy laws determine who inherits the probate estate.
The result depends on the surviving family members. A surviving spouse, children, parents, and other relatives can have different rights depending on the circumstances.
Homestead can make the analysis even more unusual.
Florida law contains special rules for a deceased person’s homestead when a spouse and descendants survive. Under the applicable statute, the surviving spouse may receive a life estate with a vested remainder for the descendants, or may elect an undivided one half interest as a tenant in common, subject to the statutory requirements.
That is one reason the simple statement “the house goes to the children” can be legally misleading.
The person handling the estate is not simply carrying out family wishes
The personal representative occupies a fiduciary position.
Florida law gives the personal representative possession or control of much of the decedent’s property and requires reasonable steps to manage, protect, and preserve estate property until distribution. Protected homestead is treated separately.
That can put the personal representative in an unusual position.
The person may be a child, spouse, sibling, or other relative of the deceased. At the same time, that person is administering property that may ultimately belong to several different beneficiaries and may have to be used to satisfy creditors or other obligations first.
Family agreement does not eliminate those duties.
A personal representative who mishandles estate property can face personal consequences. Florida’s fiduciary rules can impose liability for losses resulting from a breach of duty.
This is also why the role can become complicated even when everyone initially gets along.
The estate may owe money before anyone receives an inheritance
Death does not erase a person’s outstanding obligations.
Probate can involve mortgages, taxes, medical expenses, credit accounts, business obligations, and other legitimate claims against the estate. Florida has specific procedures governing creditor claims, including deadlines for filing them.
Generally, claims must be filed within the statutory period, subject to exceptions and special rules. The personal representative is responsible for administering the estate in accordance with those requirements.
This creates an important distinction:
The value of an estate is not necessarily the same thing as the value of the inheritance.
An estate may own substantial property while also carrying substantial obligations.
The personal representative has to determine what remains after the legally required expenses and claims are addressed.
Not every estate needs the same kind of probate
This is where Florida’s probate system becomes more interesting than the familiar idea of “going through probate.”
Florida provides different procedures depending on the circumstances of the estate. Formal administration is the more extensive process, while summary administration provides an abbreviated procedure for qualifying estates.
And Florida changed the rules in 2026.
Beginning July 1, 2026, an estate can generally qualify for summary administration when the value of the estate subject to administration in Florida, after excluding property exempt from creditors’ claims, does not exceed $150,000. Summary administration can also be available when the decedent has been dead for more than two years. The previous threshold was $75,000.
That is a significant change for Florida families.
It also means that an older article telling readers that summary administration is limited to estates worth $75,000 or less may now be giving them outdated information.
There are additional small estate procedures as well. Florida law provides a limited route for disposition without administration in certain intestate estates involving qualifying personal property and other statutory conditions.
The point is not that every family should try to avoid probate.
The point is that the appropriate procedure depends on the estate in front of you.
Then there is the house
For many families, the most important asset is also the one most likely to produce difficult legal questions.
Florida homestead law has constitutional protections and statutory rules that can affect what happens to a home after its owner dies. Those rules can interact with a will, a surviving spouse’s rights, descendants, prior ownership arrangements, and the language of deeds executed during the owner’s lifetime.
A recent Broward County case illustrates how quickly this can become complicated.
In McFarlane v. Holness, decided by Florida’s Fourth District Court of Appeal on September 23, 2026, a surviving spouse challenged the treatment of a property as homestead after her husband’s death. The case involved an enhanced life estate deed, commonly called a Lady Bird Deed.
The appellate court did not decide who ultimately had the better claim to the property. Instead, it held that the trial court had improperly resolved the deed’s legal effect at the motion to dismiss stage and sent the case back for further proceedings.
That distinction is worth noticing.
The dispute was not simply about who was named in a document. It involved the nature of the deceased person’s ownership interest, the effect of a deed, and the surviving spouse’s potential homestead rights.
In other words, “Who gets the house?” can sometimes be the beginning of the legal question rather than the end of it.
What should the family do first?
There is no universal checklist, because every estate is different. But several questions should be answered before anyone starts distributing property:
Was there a will, trust, or other estate planning document?
How was each major asset owned?
Were beneficiaries named on financial accounts, insurance policies, or retirement accounts?
Was the deceased’s home protected homestead?
What debts, taxes, or other obligations remain?
Does the estate qualify for summary administration or another simplified procedure?
Who has authority to act for the estate?
And perhaps most importantly:
Has anyone started distributing property before determining what the estate actually owes and what procedure applies?
That last question can save a family from turning a manageable probate administration into a dispute.
What happens next depends on the estate
No single event can be called “what happens after someone dies.”
There is an investigation into ownership. There may be a will to probate. Someone may need to be appointed personal representative. Creditors may have claims. Property may need to be protected or sold. A surviving spouse may have statutory rights. Beneficiaries may disagree. A house may be subject to homestead rules that make an apparently simple inheritance considerably more complicated.
And sometimes the estate qualifies for a simplified procedure instead.
That is why the first useful step is usually not trying to predict the entire probate process from the family circumstances alone. It is determining what the deceased owned, how those assets were held, and which Florida rules apply to them.
Probate in Coral Springs and Broward County
For families in Coral Springs, Broward County, and throughout South Florida, these questions are governed by Florida’s probate statutes and rules, with the appropriate proceedings handled through the local court system.
A relatively simple estate may require little more than careful administration. Another may involve a contested will, a homestead dispute, competing beneficiaries, creditor claims, or questions about the personal representative’s conduct.
The difference is often found in the details of how the deceased owned the property and what happened before and after death.
When a Florida Probate Attorney Can Help
If you are dealing with an estate after the death of a parent, spouse, relative, or other loved one, the most important legal questions may not be obvious from the will itself.
A probate attorney can help determine which assets require administration, explain the responsibilities of the personal representative, address creditor and beneficiary issues, and identify problems involving real estate, homestead, or disputed estate property before they become more difficult to resolve.
Reinfeld & Cabrera P.A. represents clients in probate and estate matters in Coral Springs, Broward County, and throughout South Florida.
Questions People Often Ask
Does everything a person owns go through probate in Florida?
No. Certain assets can pass outside probate through beneficiary designations, survivorship arrangements, or other forms of ownership. Whether an asset is subject to probate depends on how it was owned and how it was designated.
Does a will avoid probate?
Generally, no. A will provides instructions for the distribution of probate assets, but those assets may still need to pass through the applicable probate process.
What is a personal representative?
A personal representative is the person or qualified institution appointed by the court to administer a probate estate. Florida uses this term instead of executor or administrator.
Is probate always necessary in Florida?
No. Florida has formal administration, summary administration, and other procedures for qualifying estates. The facts and assets of the estate determine which procedure may apply.
What changed to Florida’s probate law in 2026?
Among other changes, Florida increased the statutory threshold for summary administration from $75,000 to $150,000, effective July 1, 2026.
Can a personal representative be held personally responsible for mishandling an estate?
Yes. A personal representative has fiduciary duties and can be liable for losses resulting from a breach of those duties. The specific consequences depend on the conduct and circumstances involved.
Related Florida Probate Topics
What Is Summary Administration in Florida? The 2026 increase to $150,000 makes this a particularly timely subject for a dedicated article explaining eligibility, procedure, and the differences from formal administration.
What Happens to a House When Someone Dies in Florida? A deeper examination of homestead, surviving spouse rights, descendants, deeds, and disputes over inherited real estate.
What Assets Avoid Probate in Florida? A focused explanation of beneficiary designations, joint ownership, survivorship rights, trusts, and other methods by which assets may pass outside probate.
What Does a Personal Representative Do in Florida? A more detailed look at fiduciary duties, control of estate property, creditor claims, distributions, conflicts, and potential liability.
What Happens to Debts When Someone Dies in Florida? A dedicated article on creditor claims, mortgages, taxes, estate expenses, and the distinction between estate debts and personal liability.
How Long Does Probate Take in Florida? A separate piece could examine formal administration, summary administration, creditor periods, contested estates, and the factors that make some probate cases considerably longer than others.
Most people think of an estate plan as a set of documents: a will, perhaps a trust, powers of attorney, and other papers kept somewhere safe.
But there is another part of estate planning that matters just as much: how each asset is actually owned and what happens to it when you die.
A bank account can pass directly to a named beneficiary. A retirement account can do the same. Property owned with rights of survivorship may pass to the surviving owner. Assets properly transferred to a revocable trust can pass through the trust rather than through probate.
Other property may still become part of the probate estate.
So avoiding probate is not usually about finding one document or legal trick that makes the entire estate disappear from court supervision. It is about deciding, asset by asset, how ownership should change when you die.
Probate Is Not One Destination for Everything You Own
Imagine someone dies owning a house, a checking account, a retirement account, an investment account, and a life insurance policy.
It would be easy to think of all of these as “the estate” and assume they follow the same process.
They do not.
The legal mechanism attached to each asset can determine what happens next.
Asset or arrangement
Possible transfer mechanism
May avoid probate?
Main consideration
Life insurance with beneficiary
Beneficiary designation
Yes
Keep the designation current
Retirement account
Beneficiary designation
Yes
The account designation matters
Bank account with POD designation
Pay on death designation
Yes
Florida law governs the transfer
Securities registered in beneficiary form
Transfer on death registration
Yes
Registration must comply with applicable requirements
Joint property with survivorship
Survivorship rights
Yes
The form of ownership matters
Properly funded revocable trust
Trust administration
Yes
Assets must actually be transferred to the trust
Solely owned property without another mechanism
Probate administration
Generally no
Probate may be required
Florida homestead
Special rules
Depends
Family and ownership circumstances matter
Florida law specifically provides for pay on death accounts and allows qualifying securities registered in beneficiary form to pass to surviving beneficiaries rather than becoming part of the deceased owner’s estate.
That is why estate planning is better understood as a system of ownership and transfer than simply a collection of documents.
Start With the Asset, Not the Will
A will is important, but it does not necessarily control every asset you own.
If a retirement account names a beneficiary, that designation can determine who receives it. A valid pay on death designation can cause funds in a qualifying account to pass directly to the surviving beneficiary. Securities registered in beneficiary form can likewise pass according to that registration.
The more useful question is therefore:
Does the way this asset is titled or designated actually match the estate plan?
A will can say one thing while an outdated beneficiary designation says another.
Marriage, divorce, the birth of children, the death of a beneficiary, remarriage, or a major change in financial circumstances can all be reasons to review these arrangements.
Beneficiary Designations: Simple, but Worth Reviewing
Beneficiary designations are among the most straightforward ways to arrange for certain assets to pass outside probate.
Florida’s pay on death statute covers deposit accounts including checking accounts, savings accounts, certificates of deposit, and similar accounts. When the relevant account owner dies, the funds generally pass according to the valid designation.
Florida also has a separate statutory system for securities registered in beneficiary form. Under §711.507, ownership passes to beneficiaries who survive the owner or owners, subject to the statutory requirements.
Similar arrangements are common with:
Life insurance
Retirement accounts
Annuities
Certain investment accounts
Pay on death bank accounts
The important word is designation.
An estate plan may have been carefully prepared years ago, but the financial institution generally follows the designation governing the account or policy.
That makes beneficiary review an important part of estate planning.
A Revocable Trust Can Avoid Probate, but It Has to Be Funded
A revocable living trust is one of the best-known probate avoidance tools.
During the owner’s lifetime, assets are transferred to the trust and managed by the trustee. After death, the successor trustee can administer trust property without requiring a probate appointment for those particular assets.
But signing the trust is only part of the process.
The Florida Bar puts it plainly: “The ‘funding’ of a revocable trust is critical to successfully avoid probate.”
A trust document does not automatically place every asset you own into the trust.
If assets remain titled solely in the deceased person’s name, those assets may still require probate. The Florida Bar notes that an incompletely funded trust can result in both probate administration for assets outside the trust and trust administration for assets held by the trust.
The documents and the ownership records therefore need to agree.
Joint Ownership Can Avoid Probate. It Can Also Change Your Rights Now.
Joint ownership with survivorship rights can allow property to pass automatically to the surviving owner.
That can be useful. It is also more consequential than simply naming someone as a beneficiary.
Adding another person as a joint owner can give that person legal rights during your lifetime. Depending on the asset and ownership arrangement, joint ownership can also create complications involving creditors, taxes, estate expenses, simultaneous deaths, or unequal treatment among heirs.
The Florida Bar warns that joint ownership can sometimes “cause more problems than it solves.”
The point is not that joint ownership is inherently problematic. It is that avoiding probate should not be the only consideration when deciding who should own an asset.
“People often think avoiding probate requires something complicated. In many cases, it starts with a few simple decisions about how your property is owned and who should receive it. A little planning can make things much easier for the people you leave behind.”
Florida Homestead Is Different
A Florida home deserves special attention because homestead does not always follow the same rules as an ordinary investment account.
Florida law establishes specific rules governing the descent of homestead. When a decedent is survived by a spouse and descendants, for example, §732.401 provides for a life estate in the surviving spouse with a vested remainder in the descendants, while also giving the spouse an option to elect an undivided one-half interest instead. That election generally must be made within six months and is irrevocable.
The statute also expressly excludes certain property owned as tenancy by the entireties or joint tenancy with rights of survivorship from its operation.
Florida also has separate rules governing lifetime transfers of homestead, including transfers involving trusts.
In other words, the family home should not simply be treated as another asset on a generic probate avoidance checklist.
Giving Property Away Is Not the Same as Avoiding Probate
The simplest version of this strategy is also the most misleading: give property away before you die and it cannot enter your probate estate.
Technically, transferring ownership during life can accomplish that.
But it also means giving up ownership during life.
That can affect control over the property, creditors, taxes, family relationships, eligibility for certain benefits, and what happens if the recipient later dies, divorces, becomes incapacitated, or experiences financial problems.
Sometimes a lifetime gift makes sense. Sometimes another estate planning mechanism accomplishes the intended result without transferring ownership immediately.
“Avoids probate” is therefore not enough reason, by itself, to give something away.
The Real Problem: When the Plan and the Assets Disagree
Consider an estate with:
A house titled individually
A retirement account naming a former spouse
A bank account with a current beneficiary
An investment account owned jointly with one child
A revocable trust that was signed but never funded
A will dividing the estate equally among three children
The documents may all look reasonable in isolation.
Together, they could produce a very different result.
The former spouse may still receive the retirement account. The joint account may pass to one child. The bank account may pass to another beneficiary. The unfunded trust may not control the assets its creator expected it to control. The house may require a separate analysis because of Florida’s homestead rules.
The will may ultimately govern only the property that remains subject to probate.
This is why estate planning is not simply a question of:
“Do I have a will?”
It is also:
“Do my assets actually pass the way I think they will?”
A Practical Probate Avoidance Review
A useful review begins with the assets themselves.
For each significant asset, ask:
Who owns it now?
How is it titled?
Does it have a beneficiary designation?
Does it have survivorship rights?
Is it owned by a trust?
What happens if the named beneficiary dies first?
Does the arrangement conflict with the will or trust?
Are there special Florida rules governing the asset?
That review can reveal that an estate plan needs only a few updates.
It can also reveal several different transfer mechanisms working against one another.
Avoiding Probate Does Not Mean Avoiding Every Legal Process
Probate is not inherently a failure of estate planning. It is a legal mechanism for administering property that falls within the probate estate.
Avoiding probate can reduce court involvement for particular assets, and trust planning can sometimes prevent additional probate proceedings in another state when someone owns property outside Florida.
But a trust does not make administration disappear.
A successor trustee still has responsibilities involving assets, debts, beneficiaries, and distribution. The Florida Bar notes that many of the practical tasks performed by a personal representative must also be performed by a trustee administering a revocable trust.
The goal, then, is not simply less paperwork.
It is a transfer plan that matches the person’s wishes, family circumstances, assets, and Florida law.
Probate Avoidance in Coral Springs and Broward County
For families in Coral Springs and Broward County, probate planning ultimately comes down to the relationship between Florida law and the way the family’s assets are actually owned.
A homeowner may have very different planning considerations from someone whose estate consists primarily of retirement and investment accounts. A married couple may face different issues from an unmarried person. Someone with children from a previous relationship may need to coordinate beneficiary designations and ownership structures particularly carefully.
There is no single “avoid probate” document that produces the same result for every Florida estate.
The better question is which legal mechanism should govern each significant asset and whether those mechanisms work together.
When an Estate Planning Attorney Can Help
If you are planning your estate in Coral Springs, Broward County, or elsewhere in South Florida, an estate planning attorney can review more than whether you have a will.
The review can include how assets are titled, whether beneficiary designations match your wishes, whether a revocable trust is appropriate and properly funded, and whether Florida’s homestead rules affect the plan.
The objective is not to avoid probate at all costs.
It is to understand which assets will pass through probate, which can pass outside it, and whether the overall plan produces the result you actually intend.
Reinfeld & Cabrera P.A. assists clients with estate planning, trusts, probate, and related matters in Coral Springs, Broward County, and throughout South Florida.
If you are reviewing an existing estate plan or creating one for the first time, contact Reinfeld & Cabrera P.A. to discuss how your assets are owned and how Florida law may affect their transfer after death.
Questions People Often Ask
Can I avoid probate completely in Florida?
Some estates can be structured so that significant assets pass outside probate. Whether that is appropriate depends on the assets, ownership structures, beneficiary designations, family circumstances, and Florida law.
Does having a will avoid probate?
No. A will generally directs the distribution of property that remains subject to probate. It does not, by itself, remove those assets from the probate process.
Does a revocable trust avoid probate in Florida?
It can, but the relevant assets must be properly transferred to the trust or otherwise coordinated with it. An unfunded trust may leave assets subject to probate.
Can a beneficiary designation avoid probate?
A valid beneficiary designation can allow certain assets to pass outside probate. Florida law specifically recognizes pay on death accounts and beneficiary registrations for qualifying securities.
Can I put my Florida home in a trust to avoid probate?
Florida homestead is subject to special constitutional and statutory rules. A trust may be appropriate in some circumstances, but homestead should not be treated like an ordinary investment asset.
Is avoiding probate always the best option?
Not necessarily. Probate serves legitimate purposes, including administration of assets that fall within the probate estate. The appropriate estate plan depends on the circumstances rather than on avoiding court involvement as an end in itself.
If you are trying to find out exactly what does a trust cover, you have come to the right trust attorney here at Reinfeld & Cabrera, P.A. to find the answer to what you are looking for. Trusts are flexible, varied and complex and can be useful estate-planning tools for you and your family. With the guidance of a trust attorney you will realize that a trust is able to cover a myriad of things.
A considerable amount of your assets in real estate, a business or an art collection are just a few things covered by a trust. One of the biggest advantages of a trust is that it is able to provide you with the ability to put conditions on how and when your assets are distributed after you die. You may decide to have your estate distributed to your heirs in a non-direct or delayed method and not in a way that is immediately payable. Working with an experienced trust attorney you can ensure that your trust will be able to accommodate such things. Perhaps you want to ensure the continual support of your surviving spouse, but also want you to make certain that the principal or remainder of your estate goes to your chosen heirs after your spouse dies. Trusts can assist in reducing estate and gift taxes and distribute assets to heirs efficiently while avoiding probate court. Together with the advice of your trust attorney you and your spouse will be able to maximize your estate-tax exemptions through the use of a trust. Another area covered by a trust is in providing for a disabled relative without disqualifying him or her from Medicaid or other government assistance. Furthermore a trust will better protect your assets from creditors and lawsuits.
There are five standard forms of trusts. The credit-shelter trust allows you to write a will bestowing an amount to the trust up to but not exceeding the estate-tax exemption. The generation-skipping trust permits you to pass on a sizeable amount of cash tax-free to beneficiaries who are at least two generations your junior. A qualified personal residence trust allows you bestow your home as a gift while you keep control of it for a stipulated period of time. The irrevocable life insurance trust could work to remove your life insurance from your taxable estate, help pay estate costs, and provide your heirs with cash for a variety of purposes. Lastly, a qualified terminable interest property trust allows you to direct your assets to particular relatives especially if your family contains divorces, remarriages and stepchildren.
Each type of trust has advantages and disadvantages. It is important that you discuss these advantages and disadvantages thoroughly with your trust attorney before setting up your trust. Do not hesitate to contact a probate attorney from Reinfeld & Cabrera, P.A. to discuss setting up the best trust that suits you and covers your needs.
If you have started looking into estate planning, you have probably run into the same question in several different forms: Should I have a will, or should I have a trust?
The internet tends to make this sound like a simple contest. Trusts avoid probate. Wills are cheaper. Trusts are for wealthy people. Wills are for everyone else.
Real estate, family circumstances, and the way you want an inheritance handled can make the answer considerably less tidy.
For many Florida families, there is no reason to think of a will and a trust as competing choices. An estate plan can use both. The better question is what you want each document to accomplish.
You May Not Need to Choose One
A will and a revocable living trust operate differently.
A will generally takes effect at death. It can name beneficiaries, nominate a personal representative to handle the estate, and nominate a guardian for minor children. Florida law also imposes specific requirements for creating a valid will, including the signatures of the person making the will and two witnesses.
A revocable living trust can operate during your lifetime and continue after your death. Depending on its terms and how it is set up, it can provide instructions for managing trust property if you become incapacitated and for distributing that property after you die.
There is nothing unusual about having both.
A person might place certain assets into a revocable trust while keeping a will to handle matters that belong there. Other assets may pass through beneficiary designations, joint ownership, or other arrangements.
That is why simply asking, “Will or trust?” can lead you down the wrong path.
When a Will May Be the Practical Starting Point
For some people, a will may cover the central things they want their estate plan to accomplish.
Perhaps your estate is relatively straightforward. You know who should inherit your property. You want to nominate someone you trust to handle the estate. If you have minor children, you want your wishes concerning their guardianship documented.
A will can address those matters.
It can also work alongside other arrangements. Your retirement account, for example, may have its own beneficiary designation. A jointly owned asset may pass according to the form of ownership. Those assets do not necessarily follow the instructions in your will.
That distinction is easy to overlook.
A will governs property that passes through the estate under the will. It does not magically change the legal ownership of everything you possess.
Florida law also gives considerable importance to the person nominated as personal representative in a will, subject to the qualifications and other requirements governing appointment.
For someone with a relatively uncomplicated estate, a carefully prepared will can therefore be an important part of a sensible estate plan.
When a Trust Starts Making More Sense
A trust becomes worth serious consideration when you want the estate plan to do things that a will does not handle as well.
Imagine that you become unable to manage your finances because of an accident or illness. A revocable living trust can contain instructions for who takes over management of trust property and how that management should occur.
Or imagine that you do not want a child to receive a large inheritance outright at a particular age. A trust can establish rules for when and how that beneficiary receives the money.
The same idea can apply when a beneficiary is young, financially inexperienced, disabled, or otherwise likely to need continuing management of inherited property.
A trust can also be useful when avoiding probate for particular assets is an important objective. Property properly transferred into a revocable trust can generally be administered under the trust rather than through the ordinary probate process.
There is an important catch: the trust has to own the property you expect it to control.
A Trust in a Drawer Does Not Control Your House
This is one of the least glamorous parts of estate planning, which may be why people forget about it.
You can have a beautifully drafted trust sitting in your desk drawer. If the house, investment account, or other asset that was supposed to be controlled by that trust was never properly transferred into it, the document alone does not accomplish the intended ownership change.
Trust funding is therefore a practical part of trust planning.
Some assets may need to be retitled. Others may be handled through beneficiary designations or separate arrangements. An attorney can help determine which approach makes sense for each asset rather than treating the entire estate as though every asset follows the same rules.
This is also why two people with seemingly similar trusts can have very different estate administration experiences.
What If Incapacity Is the Concern?
This is another area where the difference between the two documents becomes important.
A will is generally a document for what happens after death. It does not manage your property during your lifetime simply because you have signed one.
A properly structured revocable living trust can contain instructions for managing trust property while you are alive. If you become unable to act, a successor trustee can potentially assume the responsibilities described in the trust.
That does not mean a trust takes the place of every other incapacity planning document. Powers of attorney and health care directives can serve separate purposes.
Good estate planning tends to involve several documents working together rather than asking one document to do everything.
What About Probate?
Probate is probably the subject that creates the most confusion in the will versus trust debate.
A will generally does not eliminate probate. When property is part of the probate estate, the will provides instructions for its administration.
A properly funded revocable trust can keep trust owned assets out of the probate estate. That can affect how those assets are administered and how quickly they can be distributed.
But avoiding probate does not mean that nobody has to administer the estate.
A successor trustee still has responsibilities. Debts, taxes, beneficiary rights, property issues, and other legal matters may still need attention. Florida law also imposes duties and notice requirements on trustees in appropriate circumstances.
So when someone says, “A trust avoids probate,” the next question should be: Which assets are actually in the trust?
That is usually a more useful question than debating whether trusts are inherently better.
Florida Homestead Changes the Conversation
Florida residents also have something else to consider: their home.
Florida’s constitutional homestead protections can restrict how homestead property is devised when the owner is survived by a spouse or minor child. Those protections are unusually important in Florida estate planning and can affect how a home should be handled.
Putting a house into a trust does not simply erase those rules.
The Florida Trust Code contains provisions addressing homestead in revocable trusts, while Florida’s Constitution establishes protections that can affect the disposition of homestead property.
This is one reason a generic article written for “wills and trusts in America” can be a poor guide for a Florida family. The same estate planning document can have different consequences depending on the state, the property, and the family involved.
Does a Trust Cost More?
Often, there is more work involved in establishing and maintaining a trust.
Someone may need to transfer real estate, review account ownership, coordinate beneficiary designations, and revisit the plan when circumstances change. Those steps can involve additional legal and administrative costs.
But comparing a will and a trust by looking only at the initial price of the documents misses the purpose of the planning.
If your estate needs lifetime management, incapacity planning, continuing control over an inheritance, or probate avoidance for properly funded trust assets, those objectives may justify the additional work involved in establishing a trust.
For someone with a straightforward estate and different priorities, a will may play a larger role.
The point is to build the plan around the circumstances rather than starting with the price tag.
A Simple Florida Decision Framework
If your priority is…
A will may help with…
A trust may help with…
Naming beneficiaries
Instructions for property passing through the estate
Distribution instructions for trust property
Minor children
Nominating a guardian
Managing assets for children after your death
Incapacity
Limited role
Lifetime management provisions
Probate
Does not generally avoid it
Properly funded trust assets can generally avoid it
Privacy
Probate proceedings are generally public
Trust administration can offer greater privacy
Continuing control
Limited after death
Can establish continuing distribution terms
Straightforward estate
May address many core needs
May still be appropriate depending on circumstances
Florida homestead
Subject to Florida’s homestead rules
Also subject to Florida’s homestead rules
There is no checklist that can tell every Florida resident which documents to sign.
Your property, family relationships, existing beneficiary designations, debts, business interests, and plans for your beneficiaries can all change the answer.
So, Which Is Better: A Trust or a Will?
The better starting point is to forget the idea that one document has to win.
A will can establish important instructions for what happens after death. A revocable living trust can provide a framework for managing property during life, planning for incapacity, and distributing trust assets after death.
Many estate plans use both.
You probably know your property, your family, and the people you want to protect. You are not expected to know every Florida rule governing probate, trusts, homestead, asset ownership, and inheritance.
Your attorney is.
That is where individualized estate planning earns its keep. The goal is to understand how the pieces fit together before your family has to deal with them under difficult circumstances.
Frequently Asked Questions
Is a trust better than a will in Florida?
There is no universal answer. The appropriate estate planning documents depend on your property, family circumstances, goals, and the kind of management you want during your lifetime and after your death.
Do I still need a will if I have a trust?
Often, yes. A will can address matters that the trust does not, including certain property that remains outside the trust and the nomination of a guardian for minor children.
Does a trust avoid probate in Florida?
Property properly transferred to a revocable trust can generally pass under the trust rather than through probate. Property left outside the trust may still require probate or another form of administration.
Does a trust help with incapacity?
A properly structured revocable living trust can contain instructions for managing trust property if the person who created the trust becomes unable to manage it personally.
Does creating a trust automatically put my property into it?
No. Trust funding and asset ownership need to be handled properly. A trust document does not automatically retitle every asset you own.
Can a trust control when beneficiaries receive an inheritance?
Yes. A trust can establish terms governing when and how beneficiaries receive trust property, subject to the terms of the trust and applicable law.
Can a trust control my Florida homestead?
Florida homestead is subject to constitutional and statutory rules that can restrict how the property is devised. Trust planning involving a Florida homestead requires careful attention to those rules.
Talk With a Florida Estate Planning Attorney
If you are trying to decide whether your estate plan should include a will, a revocable living trust, or both, start with the actual estate rather than with a generic checklist.
An experienced Florida estate planning attorney can review your property, existing documents, family circumstances, and intended beneficiaries and explain how the available planning tools fit together.
While you may be able to buy some documents to help you set up your own will, hiring a wills and trust attorney is your best bet when it comes to making sure your wishes are legally documented and carried out after you pass away.
Florida has specific state requirements that determine what can be included in a will or a trust. If you are not up to speed on the specific state requirements, you should consult with a wills and trusts attorney when naming a personal representative, beneficiaries, or any specific instructions for your estate.
Also, you may feel like you have an easy estate to plan, but if you are in a second marriage (or third, fourth, etc.), are recently divorced, have any minor children, children with any special needs, or want to leave some of your estate to a charity, you have an estate that could use the expert planning advice of a wills and trusts attorney.
Without the proper legal estate plans in place, a large portion of your estate could be lost during the probate process. However, with the proper preparations from a knowledgeable wills and trusts attorney, your estate could be well protected, making sure your beneficiaries receive all that you wish.
One missing document, or unsigned piece of paper, could be the difference between a legal will or one that can easily be contested. Don’t take a chance on doing it yourself. Hire a wills and trust attorney at Reinfeld and Cabrera, P.A. We not only provide wills preparation to control the disposition of property upon death, but we also prepare trusts, including revocable, special needs, minor, generation skipping, irrevocable, charitable and other trusts.
If you are trying to find out exactly what does a trust cover, you have come to the right 
