How to Prepare a Trust in Florida: Step-by-Step Guide

To prepare a trust in Florida, you set clear goals, choose a trust type, name a trustee and a successor trustee, and sign written terms that meet state law. Then you move property into the trust. That last step is the one people most often skip.

This guide walks through each step, the Florida rules behind it, and the mistakes that lead to later disputes. It is general information, not legal advice for your situation.

What a Trust Is and Why Floridians Set One Up

A trust is a written arrangement in which a settlor transfers property to a trustee, who manages it for named beneficiaries under the trust’s terms. The settlor is the person who creates the trust. The trustee holds legal control of the property and must follow the trust’s terms. The beneficiaries are the people who receive the benefit of the property.

A successor trustee steps in when the first trustee cannot keep serving. Families often set up a trust for two main reasons. The first is incapacity, when a person can no longer manage money or property. The second is death, when the trust directs how property passes to the people the settlor chose.

Fla. Stat. § 660.25 defines terms used in its chapter and provides that terms it does not define have the meanings given in certain other chapters, including chapter 736. Knowing the basic roles makes every later step easier to follow.

Step 1: Determine Your Goals

Start by writing down what the trust must do. Decide who receives property, when they receive it, and under what conditions. A clear written list makes drafting easier and lowers the chance that two provisions conflict.

Some situations need extra thought. Minor or dependent beneficiaries, a blended family, a family business, real estate in more than one place, or a relative who needs protection all change how the trust should read. Many people also choose a trust to keep family affairs private and to plan for property to pass without a probate proceeding. Remember that a trust only helps with property it actually holds. Step 5 covers that point in detail.

Step 2: Choose the Right Trust Type

The three most common choices are a revocable living trust, an irrevocable trust, and a testamentary trust created under a will. Each works differently, so the choice should match your goals.

A revocable living trust is one the settlor can usually change or cancel during life. Florida law says that unless the trust terms expressly state the trust is irrevocable, the settlor may revoke or amend it (§ 736.0602). Many people use this type to manage property and to plan for incapacity.

An irrevocable trust generally offers fewer ways to change its terms. That limit is the point for some planning goals, so the reasons for creating one should be clear before anyone signs. A testamentary trust is created by a will and takes effect at death. Florida law recognizes trusts created by transfer during life, by a will or other disposition that takes effect at death, by declaration by the owner of property that the owner holds identifiable property as trustee, or by exercise of a power of appointment in favor of a trustee (§ 736.0401).

The right type depends on the facts. Consider your family, the kinds of property you own, and how much control you want to keep.

Step 3: Choose Your Trustee and Successor Trustee

A trustee manages trust property and owes duties to the beneficiaries. Choosing one is a serious decision about judgment, time and record-keeping. Common choices include a family member, a friend, a corporate fiduciary, or an individual attorney.

Ask any corporate option how it is licensed before you name it.

Trust Counsel’s attorneys can serve individually as trustee or personal representative, and the firm advises and represents trustees, personal representatives and beneficiaries. The firm does not itself serve as a fiduciary. Florida’s office for a deceased person’s estate is the personal representative (often called an executor).

Naming a successor matters. A vacancy occurs if a designated trustee declines, cannot be identified, resigns, is removed, dies, or is adjudicated incapacitated (§ 736.0704). For a noncharitable trust that must be filled, Florida law fills the seat in order. The first choice is a successor named in the trust. Next comes a person the qualified beneficiaries agree on unanimously. Last, the court appoints someone. A trust that says how a successor is chosen avoids that uncertainty.

Step 4: Draft the Trust and Meet Florida’s Requirements

A Florida trust is created only if the settlor has capacity and indicates an intent to create the trust. The trust must also have a definite beneficiary or a permitted purpose, and the trustee must have duties to perform. The same person cannot be both the sole trustee and the sole beneficiary (§ 736.0402).

The trust’s purposes must also be lawful, not contrary to public policy, and possible to achieve (§ 736.0404). Capacity is the settlor’s mental ability at signing. For a revocable trust, that capacity is the same as the capacity needed to make a will (§ 736.0601).

A typical trust includes a name, distribution terms, trustee powers, incapacity provisions, and instructions for administration and successor trustees. A trust can control when and how beneficiaries receive assets, and the settlor’s wishes should be stated clearly in the trust document.

A pour-over will is often signed with a revocable trust. It moves property not already in the trust into the trust at death. A pour-over will is still a will. It must be in writing and signed at the end by the testator, or by another person in the testator’s presence and at the testator’s direction; the testator’s signing or acknowledgment must be in the presence of at least two attesting witnesses, who must sign in the presence of the testator and each other (§ 732.502).

Step 5: Fund the Trust by Retitling Assets

A trust controls only the property that has been moved into it. Funding is a required step, not an afterthought. Funding means retitling property in the trust’s name or assigning it to the trust.

Common funding actions include retitling bank and brokerage accounts, assigning business interests, and deeding real estate to the trustee. Each asset may need its own paperwork, so a list of every asset is a useful starting point.

Florida real estate needs extra care. Florida’s Constitution protects a homestead. A homestead cannot be devised if the owner is survived by a spouse or minor child, except that it may be devised to a surviving spouse if there is no minor child (Fla. Const. art. X, § 4). For trusts described in s. 733.707(3) and testamentary trusts, a power of sale or general direction to pay debts, expenses and claims does not subject protected homestead to the decedent’s creditors’ claims (§ 736.1109).

Banks and other third parties often do not need the full trust document. A trustee may give a certification of trust instead. That certification states facts such as the trust’s existence, the settlor, and the currently acting trustee (§ 736.1017).

Assets left outside the trust may still need probate. The personal representative (often called an executor) handles probate for those assets. That is why a funding review belongs in the preparation process, not after signing.

Common Mistakes That Lead to Trust Disputes

The most common mistakes are terms that do not match what the settlor wanted, an unfunded trust, and beneficiary designations that conflict with the trust plan. A dispute often starts with one of these gaps.

Retirement accounts and life insurance can pass outside the trust. Their beneficiary designations should match the trust plan. A plan that looks correct on paper can fail if these designations point elsewhere.

Marriage and divorce also matter. A subsequent marriage, or the birth or adoption of descendants, does not revoke a revocable trust (§ 736.1105). Under Florida law, for decedents who die on or after June 29, 2021, a trust provision that affects the settlor’s spouse becomes void on dissolution of the marriage, unless a statutory exception applies (§ 736.1105).

Skipping incapacity planning is another common gap. A trust with no incapacity provisions and no named decision-maker leaves a family without a clear path if the settlor can no longer manage property.

Tax issues need review too. Estate tax planning and the treatment of business interests should be addressed before signing, not later. Promotional trust packages deserve caution.

Finally, review the trust after marriage, divorce, a death, a move, or a major change in assets.

Frequently Asked Questions About Setting Up a Florida Trust

These short answers cover the questions readers ask most often about how to prepare a trust in Florida.

Talking Through Your Family’s Situation

If you are reading this because a parent has a new diagnosis or a relative has died, you do not have to sort out the steps alone. Many readers are weighing a trust while a family member is ill, after a death, or while a business succession decision is pending.

The decision may not be yours alone. You may be preparing a revocable trust for a parent, or trying to make sense of an existing trust that was never funded. Each situation turns on the facts, and the steps above apply in different ways.

Leslie V. Marenco, an attorney at Trust Counsel, PL, is responsible for this page. The firm focuses on trusts and estates matters for Florida families, business owners and fiduciaries, from its only office in Coral Gables. If you are weighing a trust during a parent’s illness or a family business decision, you can schedule online or call (305) 707-7126 to talk it through.