Build a Florida Trust Plan Designed to Help Keep Your Estate Out of Probate

Written under the responsibility of Leslie V. Marenco. Trust Counsel, PL’s office is in Coral Gables, Florida.

Many Florida families search for a trust based estate plan avoiding probate because they want to know what passes without a court process. The answer depends on how the trust is written and which assets are moved into it. This guide explains the outcomes, the main tools that work alongside a trust, and the trade-offs. For the wider picture, see our Florida estate planning guide.

What outcomes can a properly drafted Florida trust-based estate plan achieve, such as avoiding probate and protecting beneficiaries?

A properly drafted and funded trust can let assets pass to named beneficiaries without the court process of probate. It can also set the terms for how and when beneficiaries receive property. These outcomes apply to assets the trust actually holds, not to everything a person owns.

A trust can be created by transferring property to a trustee during the settlor’s lifetime, by a will or other disposition that takes effect at death, by the owner’s declaration that the owner holds identifiable property as trustee, or by exercising a power of appointment in favor of a trustee (Fla. Stat. § 736.0401). Once property is titled in the trust, the successor trustee manages it under the trust’s written terms. The document can stage distributions, such as paying a child in parts or at a later age.

A trust can also include a spendthrift provision. Florida treats that provision as valid only if it restrains both voluntary and involuntary transfer of a beneficiary’s interest (Fla. Stat. § 736.0502).

A trust cannot control assets left outside it. An account or home still in your own name may need to pass through probate. Drafting and funding decide the outcome, so the trust must be checked against every deed and account title.

What Is Probate and Why Do Florida Families Try to Avoid It?

Probate is the court-supervised process for moving a deceased person’s assets that are titled in that person’s own name. A personal representative (often called an executor) is appointed to collect those assets, pay valid debts and distribute what remains.

Florida law says a will is ineffective to prove title to, or the right to possession of, the testator’s property until it is admitted to probate in this state or in the state where the decedent was domiciled (Fla. Stat. § 733.103). That is why a will alone does not move property right away.

Families look for alternatives for a few common reasons. The court process takes time. Filings become part of the public record. Disputes among heirs, beneficiaries or creditors can bring the court into the picture for longer.

Probate is not avoided automatically. Whether an asset goes through probate depends on how it is titled and whether it sits inside a trust. A home, a bank account and a car each follow their own path.

How Revocable Trusts Work for Avoiding Probate in Florida

A revocable trust has three roles. The settlor creates it, the trustee manages it, and the beneficiaries receive from it. Unless the trust says it is irrevocable, the settlor may revoke or amend it, though this rule does not apply to a trust created under an instrument executed before the effective date of the code (Fla. Stat. § 736.0602).

Funding is the step that matters most. The trust must hold title to the asset, through a new deed, a retitled account or a beneficiary designation that names the trust. An asset left in the settlor’s own name does not move into the trust by itself.

When a trustee dies, resigns or is removed, a vacancy occurs. If one or more cotrustees remain in office, a vacancy need not be filled; if the trust has no remaining trustee, a vacancy in a noncharitable trust must be filled, first by the trust’s named successor trustee, then by a person appointed by unanimous agreement of the qualified beneficiaries, and then by a person appointed by the court; for a charitable trust, the order of priority begins with a person named or designated under the trust’s terms to act as successor trustee, followed by a person selected by unanimous agreement of the charitable organizations expressly designated to receive distributions under the trust’s terms, and then a person appointed by the court (Fla. Stat. § 736.0704). Trust Counsel’s attorneys can serve individually as trustee or personal representative, while the firm advises and represents trustees, personal representatives and beneficiaries.

One trade-off: during the settlor’s life, a revocable trust’s property can be reached by the settlor’s creditors to the same extent it could be if the settlor owned it directly (Fla. Stat. § 736.0505).

Assets That Can Pass Outside Probate: Lady Bird Deeds, Beneficiary Designations and Joint Ownership

Several tools can move assets outside probate. Each works differently, and none replaces a trust.

A lady bird deed is a deed for real estate. Florida families often use it to name who receives the home at death while the owner keeps control during life. Its effect depends on how the deed is drafted and recorded.

Beneficiary designations on retirement accounts, life insurance and certain financial accounts name a payee directly. These forms must be kept current. An old form can send money to someone the owner no longer intends to benefit.

Joint ownership carries real trade-offs. Florida does not apply the right of survivorship to joint tenancy unless the instrument creating the estate expressly provides for it, except in cases of estates by entirety. Otherwise, co-owners hold as tenants in common, except in cases of estates by entirety, where the tenants become tenants in common only upon dissolution of marriage (Fla. Stat. § 689.15). Adding a child as co-owner also gives that person a stake in the property during your life, including exposure to that person’s debts and decisions.

Each of these tools works best alongside a trust, and each asset needs its own review.

What a Pour-Over Will Does in a Florida Trust-Based Plan

A pour-over will is a backup will. It directs assets still in the decedent’s name at death into the trust. Florida allows a valid devise to the trustee of a trust when the written trust instrument exists when the will is made, or is signed at the same time as the will, and is identified in the will (Fla. Stat. § 732.513). Unless the will says otherwise, the devised property becomes part of the trust’s principal.

The catch is probate. Assets that pass through a pour-over will still need the court process, because a will is ineffective to prove title until it is admitted to probate (Fla. Stat. § 733.103). The pour-over will is a safety net for assets missed during funding. It is not a probate-avoidance tool by itself.

Important Considerations Before Relying on a Trust to Avoid Probate

Funding gaps come first. An unfunded trust may not avoid probate for assets that were never moved into it. Check each deed, account and beneficiary form against the plan.

Life events also change a plan. Under Florida law, a later marriage, birth or adoption does not revoke a prior will, but a pretermitted child or spouse may still inherit regardless of that will (Fla. Stat. § 732.507). A will provision that affects a spouse is void when the marriage is dissolved, with exceptions the statute lists. Review documents after a marriage, divorce, birth, death or property purchase.

Notice timing matters too. The trustee must notify qualified beneficiaries within 60 days after learning that an irrevocable trust was created, or that a formerly revocable trust has become irrevocable, such as by the settlor’s death, though this does not apply to an irrevocable trust created, or a revocable trust that became irrevocable, before the effective date of the code (Fla. Stat. § 736.0813). Creditor, tax and public-benefits questions turn on each family’s facts.

Talking With a Florida Trusts Attorney About Your Situation

Many readers are reviewing a parent’s plan after a loss. Others are setting up their own documents while assets and family circumstances change. Either way, a useful first step is a simple list: which assets sit in the trust, which pass by deed or beneficiary form, and where the gaps may be.

The first consultation is free, confidential and carries no obligation to continue.

If you’re sorting out a parent’s plan or your own trust and deeds, call (305) 707-7126 or schedule online.

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