Do I Need a Will or a Living Trust in Florida?

Short answer: For most Florida families, it comes down to this. A will is simpler and less expensive, but it sends your estate through probate. A properly funded revocable living trust costs more to set up, but it usually avoids probate and keeps your affairs private. The right choice depends on your assets, your family, and your goals.

One of the most common questions I hear from clients is whether they should have a Last Will and Testament or a Revocable Living Trust. Both documents can accomplish effective estate planning, but they work in very different ways. Here is how each one works, how they compare, and how to decide.

What does a will do in Florida?

A will is a document that tells the probate court how you want your assets distributed after your death. A Florida will lets you:

• Direct how your assets are distributed after you pass away.
• Nominate a personal representative (sometimes called an executor) to administer your estate.
• Nominate a custodian to manage assets for your minor children.

After your death, the will is filed with the probate court, and the court supervises the administration of your estate before assets are distributed to your beneficiaries. Florida probate is governed by the Florida Probate Code.

What is a revocable living trust?

A Revocable Living Trust is a private agreement created during your lifetime. Typically, you serve as your own trustee while you are alive and competent, maintaining complete control over your assets. The trust names a successor trustee who automatically steps in if you become incapacitated or after your death. The successor trustee then continues managing or distributing the trust assets according to the instructions you have already provided, generally without opening a probate estate. Florida trusts are governed by the Florida Trust Code.

Does a living trust avoid probate?

A properly drafted living trust that is funded during the trust creator's life typically avoids probate. The reason it is called a "living" trust is that it becomes effective, and hopefully gets funded, while its creator is alive, so that assets do not need to be transferred after death. Then, upon the creator's death, a designated successor trustee administers the trust estate in accord with the trust provisions.

Passing an estate under a living trust, as opposed to a will, also typically keeps an estate plan private. This is because a living trust, unlike a will, does not need to be automatically filed in court after its creator dies.

What are the drawbacks of a living trust?

A living trust is not the best choice for everyone. It is a more sophisticated tool, and it carries some trade-offs:

• Higher cost. A trust requires additional attorney time to prepare and, just as importantly, to "fund" by transferring appropriate assets into it. A comprehensive living trust package often involves multiple trust attachments, deeds, and assignments, and costs significantly more than a simple will.
• It relies on your successor trustee. That person will have significant authority to manage investments, pay bills, and distribute assets according to the trust's terms. If you have concerns about whether anyone in your life is suited for that responsibility, a traditional will may actually be the better choice.
• Less built-in oversight. Probate court provides judicial oversight that can offer an additional layer of accountability when an estate is administered.

Do I still need a will if I have a trust?

I recommend that most clients who have set up a living trust also execute a "pour-over" will. This document directs any assets inadvertently left outside the trust at death to be transferred into the trust through probate. Likewise, beneficiary designations on retirement accounts and life insurance should be reviewed to ensure they work together with the overall estate plan.

What happens if I have neither a will nor a trust?

If you have neither a will nor a trust, Florida law, not you, determines who inherits your property. These default inheritance rules are known as the laws of intestacy, and they may distribute your estate in a way you would not have chosen.

Will vs. living trust: a side-by-side comparison

	Last Will and Testament	Revocable Living Trust
Probate	Goes through probate	Usually avoids probate
Privacy	Filed in the public court record	Generally stays private
Upfront cost	Lower	Higher, often significantly more
If you become incapacitated	Does not help during your lifetime	Successor trustee can step in and manage assets
Court oversight	Yes, which can add accountability	No automatic court supervision
Often best for	Simpler estates comfortable with probate	Those seeking privacy, incapacity planning, or probate avoidance

So, should you choose a will or a living trust?

There is no one-size-fits-all answer. A will is often an excellent solution for individuals with relatively straightforward estates who do not mind the probate process. A properly funded living trust may be preferable for those seeking greater privacy, continuity of asset management during incapacity, or probate avoidance. An experienced Florida estate planning attorney can help you weigh the advantages and disadvantages of each approach and recommend the plan that best fits your family's needs.

Frequently asked questions

Does a living trust avoid probate in Florida? A properly funded revocable living trust usually does. Because the trust owns the assets, no court needs to appoint a personal representative before those assets pass to your beneficiaries. Assets left outside the trust may still require probate.

Is a living trust more expensive than a will? Yes. A living trust takes more attorney time to draft and fund, so a full trust package generally costs significantly more than a simple will, depending on the complexity of your estate.

What happens if I die without a will or a trust in Florida? Florida's laws of intestacy decide who inherits, in an order set by statute, and the estate is administered through probate. The result may not match what you would have chosen.

Do I still need a will if I have a living trust? In almost all cases, yes. A "pour-over" will catches any assets left outside the trust and directs them into it, and your beneficiary designations should be coordinated with the plan.

At Clarke Law, P.A., I help South Florida families choose and build the plan that fits their situation. Your first consultation is free.