Wills and Trust have different jobs: Wills directs who inherits through probate; Trusts can skip probate entirely and protect inheritance. Most families need at least one; many benefit from both. Here's how to choose.
What does a Florida Will do?
A will names your beneficiaries, appoints the personal representative who will settle your estate, and, for parents of minor children, nominates guardians. To be valid, a Florida will must be signed at the end by you in the presence of two attesting witnesses, who must sign in your presence and in each other's presence (§732.502, Florida Statutes). Adding a self-proving affidavit at signing lets the court admit the will without tracking down witnesses later.
A will does not avoid probate. It is the instruction manual for the probate court, which is why an unfunded “simple will” plan still puts your family through the court process.
What does a revocable living trust do?
A revocable living trust holds title to your assets during your life, with you in complete control as trustee. At your death, your successor trustee distributes the trust assets under the trust's terms, privately and without probate. If you become incapacitated, the successor trustee manages the trust for your benefit, often avoiding the need for a guardianship. Florida trusts are governed by Chapter 736, the Florida Trust Code.
The catch is funding: a trust only controls assets actually titled in it. That is why trust-based plans include a pour-over will and why we give every trust client specific funding instructions.
Will or trust: how do you choose?
As a rule of thumb: a will-based plan is simpler and costs less up front, but your estate goes through probate later. A trust-based plan costs more up front and requires retitling assets, but it avoids probate, provides for incapacity, keeps your affairs private, and handles out-of-state property cleanly, a common issue for seasonal residents with a home up north. For a side-by-side comparison, see my earlier article, Living Will vs Living Trust Florida: Do You Need Both? We will look at your assets and family and tell you plainly which we would choose in your position.
Frequently asked questions
Is a handwritten will valid in Florida? Not unless it is executed with the same formalities as any other will, including the two witnesses. Florida does not give effect to unwitnessed handwritten (holographic) wills, even if they were valid in the state where they were written.
Does a trust avoid all probate? Only for assets titled in the trust or passing by beneficiary designation. Assets left in your individual name may still require probate, which the pour-over will directs into the trust.
What happens if I have neither? Florida's intestacy statutes (Chapter 732) determine your heirs, and the court supervises the distribution. The formula is rigid and may not match what you would have chosen.
We have helped thousands of clients get their affairs in order, usually with a single in-office signing appointment, and we welcome clients from anywhere in Florida. Contact us for a free consultation.