In short: Most Florida families don’t need a trust to avoid probate. POD and TOD designations, beneficiary designations, a lady bird deed for the house, and a will as a backstop usually do the job. A trust makes sense for minor or special-needs beneficiaries, property in several states, blended families, or larger estates.
Somebody told you that you need a living trust. Maybe a seminar. Maybe a financial advisor. Maybe a video on your phone.
Maybe you do. Most people don’t.
What a Trust Is
A trust is an arrangement where one person (the trustee) holds and manages property for the benefit of others (the beneficiaries) under written instructions from the person who created it (the settlor). In Florida, trusts are governed by the Florida Trust Code, Chapter 736.
Two kinds matter for most families:
- Revocable living trust. You create it, you are usually the trustee, you can change it or cancel it anytime. When you die, it becomes irrevocable and your successor trustee takes over.
- Irrevocable trust. Once it is signed and funded, you generally cannot change or revoke it. In exchange, it can offer tax and asset-protection benefits that a revocable trust cannot.
What a Revocable Trust Does Not Do
The sales pitch leaves some things out:
- It does not avoid probate for anything that isn’t in it. A trust only controls assets that are actually titled in the trust’s name or that name the trust as beneficiary. An unfunded trust is a stack of paper.
- It does not protect you from your own creditors. While you are alive, property in your revocable trust is reachable by your creditors under § 736.0505, to the same extent it would be if you owned it directly.
- It does not escape your estate’s debts. Under § 733.707(3), a revocable trust can be made to pay the estate’s expenses and claims when the probate estate is not enough.
- It does not prevent fights. Trusts are contested for lack of capacity, undue influence, and poor administration just like wills.
- It is not easier to sign than a will. For a Florida resident, the parts of a revocable trust that act like a will are invalid unless the trust is signed with the same formalities as a will (§ 736.0403(2)(b)).
Why Most Families Don’t Need One
For a typical Florida family (a homestead, a few bank and brokerage accounts, a retirement account), the same result can usually be reached with simpler tools:
- Payable-on-death and transfer-on-death designations on bank and investment accounts
- Beneficiary designations on retirement accounts and life insurance
- A lady bird (enhanced life estate) deed for the house
- A will as a backstop, and a durable power of attorney for incapacity
Those transfers happen at death without a court and without a trustee to supervise.
Who Actually Should Consider a Trust
- You have minor children, or adult beneficiaries who cannot manage money
- You have a beneficiary with special needs who receives government benefits
- You own real estate in more than one state
- You have a blended family and want control over what happens after the surviving spouse dies
- Your estate is large enough that tax planning matters
- You want a professional to manage money over a long period
Irrevocable Trusts and Asset Protection
An irrevocable trust can protect assets, but only if it is set up properly and well before trouble arrives. Moving assets into a trust to dodge a creditor you already have is a fraudulent transfer problem, not a plan. See Can I Hide My Assets With a Trust? and Moving Assets? Hiding From Creditors? Read This First.
If You Do Get a Trust, Do It Right
A trust is a fiduciary arrangement that may run for decades. Have a lawyer who practices here draft it, fund it, and explain to your successor trustee what the job will require. The cheapest trust is often the most expensive one your family will ever litigate.
Watch: the videos behind this article
Living Trust in Florida: How to Avoid Probate & Protect Your Family
Do You Need a Trust in Florida? Why Trusts Aren’t Just for the Wealthy
Revocable Living Trust in Florida | How Trusts Are Created, Funded, and Made Legally Valid
What Is an Irrevocable Trust in Florida? Asset Protection & Benefits
More Short Videos on This Issue
Go Deeper
- Why I Hate Revocable Trusts
- WARNING: DIY & Online Trusts Can Cost Your Family Thousands
- Can You Trust Your Trustee? Florida Trust Code Explained
Frequently Asked Questions
Does a revocable trust avoid probate in Florida?
Only for assets actually titled in the trust or payable to it. Anything left in the person’s individual name still goes through probate, usually through a pour-over will.
Does a revocable living trust protect assets from creditors?
No. During the settlor’s lifetime, revocable trust property is reachable by the settlor’s creditors under § 736.0505 to the same extent as if owned directly.
What is the difference between a revocable and an irrevocable trust?
A revocable trust can be changed or cancelled by the person who created it. An irrevocable trust generally cannot, but it may offer tax and asset-protection benefits a revocable trust does not.
Does a Florida trust have to be signed like a will?
For a Florida resident, the testamentary parts of a revocable trust are invalid unless the trust is executed with the formalities required for a will (§ 736.0403(2)(b)).
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a living trust lawyer in St. Petersburg for trust planning and trust disputes, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
