Will or Trust? Choose the Plan That Fits Your Florida Estate

Neither a will nor a trust is better in every case. The right choice depends on the governing instrument, applicable Florida law, and the facts of your estate. This guide explains how each document works, where they differ, and how many Florida families use both. Trust Counsel, PL is a trusts and estates law firm with its only office in Coral Gables, Florida.

The short answer: a will or a trust depends on the estate

Neither document is better for everyone. A will and a trust do different jobs, so the answer to whether you need one, the other, or both depends on your situation. A person with a few accounts and a simple family may need little more than a will. A person who owns a home, a business interest, or property that a family member may need help managing may also look at a trust.

Some estate plans use both documents together, depending on the governing instrument, applicable Florida law and the facts of each case. One possible pattern is a revocable trust that holds major assets, paired with a will that catches anything left outside the trust. The choice is often less about which document sounds more formal. It is more often about how assets pass, who manages them, and what happens if you can no longer manage your own affairs.

This page supports our overview of professional trustee services. Trust Counsel’s attorney, Leslie V. Marenco, advises and represents clients on these questions, depending on the governing instrument, applicable law and the facts of each case. The firm itself does not serve as a fiduciary.

What a will does in Florida

A will is a written document that generally takes effect at death. Under Fla. Stat. § 732.502, a will is generally required to be in writing, although exceptions and alternatives may apply depending on applicable law and the facts of each case. The person making it must sign at the end, or have another person sign in their presence and at their direction.

Florida’s execution rules for a will generally involve attesting witnesses, but the requirements can depend on applicable law and the facts of each case, including whether the testator acknowledges a signature before the witnesses and whether other execution provisions apply. Those witnesses must sign the will in the presence of the person making it and in the presence of each other. Florida’s self-proving will procedure is addressed in Fla. Stat. § 732.503, and whether self-proving a will affects probate depends on applicable law and the facts of each case.

A will often names a personal representative (often called an executor) to handle the estate. The personal representative’s authority depends on the will, Florida law, and any court order. A will alone does not move property automatically. Under Fla. Stat. § 733.103, a will is ineffective to prove title until it is admitted to probate. Assets titled only in the decedent’s name generally go through probate. The scope and timing of probate depend on the estate and applicable law.

What a trust does in Florida

A trust is an arrangement in which a person, called the settlor, transfers property to a trustee. The trustee holds and manages that property under the trust’s terms. Under Fla. Stat. § 736.0401, a trust may be created by transferring property to a trustee during the settlor’s lifetime. It may also be created by a will or other disposition that takes effect at death.

Whether the settlor may revoke or amend a trust depends on the trust instrument, the date the trust was created, applicable Florida law and the facts of each case, as addressed in Fla. Stat. § 736.0602. The capacity needed to create or amend a revocable trust is the same as the capacity needed to make a will, under Fla. Stat. § 736.0601.

A trust’s terms may address management during the settlor’s life, incapacity, and distribution after death. What a trustee must or may do depends on the governing trust instrument and applicable Florida law. A trustee holds and manages trust property. A beneficiary holds an interest in it. Those roles can overlap, but the trust terms set the scope of each.

Who controls the assets in a trust?

Property titled in a trust is generally managed by the trustee under the trust instrument. A settlor who also serves as trustee may keep day-to-day control during life. Whether that is true depends on the trust’s terms.

If a trustee cannot act, the trust may name a successor. Under Fla. Stat. § 736.0704, a vacancy in a noncharitable trusteeship that must be filled is filled first by a person named in the trust. If none is named, the qualified beneficiaries may agree unanimously on a person. If they do not, the court may appoint one. Section 736.0704(3) sets out an order of priority for filling a required vacancy, and how that order applies to the facts of each case depends on applicable law.

Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries. The firm itself does not serve in either role. Florida’s Office of Financial Regulation separately addresses family trust companies, a licensing program for those providers.

Key differences between a will and a trust

• Probate: A will generally needs probate for assets titled in the decedent’s name.
• Privacy: Public access to an estate inventory or accounting filed with the clerk, and the confidentiality of trust information, can vary with applicable Florida law, the governing instrument and the facts of each case. Trust administration follows the trust terms, so its privacy depends on the instrument.
• Incapacity: A trust may include provisions for managing assets if the settlor becomes unable to do so. A will does not take effect until death. The effect of either document depends on its terms.
• Administration: A will is administered through a personal representative and the probate process. A trust is administered by the trustee under its terms. The work involved depends on the estate and the governing instrument.

Funding a trust and the role of a pour-over will

A trust controls only the property actually transferred to it. Funding means retitling a home, accounts, or business interests into the trust. The steps depend on the asset type and applicable law.

A pour-over will directs assets left outside the trust into the trust at death. Under Fla. Stat. § 732.513, a devise to a trustee may be valid if the trust instrument exists when the will is made, or is signed with it, and the will identifies that instrument. Unless the will provides otherwise, the devised property becomes part of the trust’s principal.

A pour-over will may still require probate, and whether it does depends on the governing instrument, applicable Florida law and the facts of each case. Because of § 733.103, assets that reach the trust through the will may still need to pass through probate first. How a trust and a will work together depends on both governing instruments and the facts of each case.

How fees are determined for a will or trust

Fees are agreed between the client and the attorney according to the scope of work. The scope may depend on the estate’s complexity, the number of documents, the funding steps, and whether probate or trust administration is involved.

Trustee and personal representative compensation follows the instrument and Florida law. If a trust does not specify a trustee’s compensation, Fla. Stat. § 736.0708 addresses the subject, and whether and how much a trustee may receive depends on the governing instrument, applicable Florida law, any court order and the facts of each case. Florida law addresses disclosure conditions where an attorney who prepared the trust serves as trustee, in Fla. Stat. § 736.0708(3)-(4), and how those conditions apply depends on the trust instrument, applicable law and the facts of each case.

For personal representatives, Fla. Stat. § 733.617 describes a commission for ordinary services. That commission is based on the estate’s compensable value. Whether any compensation applies depends on the will, applicable law, any court order, and the facts of each case.

Questions to ask before choosing between a will and a trust

Before you decide, it helps to gather a few facts:

• Which assets do you own, and how are they titled?
• Do you own a home or a business interest that needs a funding plan?
• Who should manage property if you cannot manage it yourself?
• Who would you name as personal representative or trustee, and does the governing instrument allow that choice?
• Are you considering a product sold as a special trust? The American College of Trust and Estate Counsel warns that promotional trust structures may create tax and creditor-protection risks.

Does a trust avoid probate in Florida?

How particular assets pass at death depends on the governing instrument, how each asset is titled and funded, applicable Florida law, and the facts of each case.

Can a will and a trust work together?

Yes, many Florida plans use both. The way they interact depends on the governing instruments and the facts of each case. You can learn more about how a revocable trust works.

Talk with Trust Counsel, PL about your situation

Many people research this question during a hard stretch. Some are planning after a diagnosis. Some are helping a parent who can no longer manage money. Others have just learned a relative named them as a personal representative or trustee.

If you are weighing these options now, you can call Trust Counsel, PL at (305) 707-7126 or schedule online. Any recommendation depends on the governing instrument, applicable Florida law, and the facts of each case.