In short: A pour-over will leaves probate assets to the trustee of the person’s trust, and Florida allows it even if the trust is later amended (§ 732.513). But the trust’s at-death terms fail unless it was signed with will formalities (§ 736.0403(2)(b)). And the deadlines differ: 3 months to contest the will, as little as 6 months for the trust.
Most Florida revocable trust plans come in pairs: the trust, and a short pour-over will that sends anything left outside the trust into it at death. When they work, nobody notices. When they don’t, the family is fighting on two fronts.
How a Pour-Over Works
"A valid devise may be made to the trustee of a trust that is evidenced by a written instrument in existence at the time of making the will, or by a written instrument subscribed concurrently with making of the will, if the written instrument is identified in the will." (§ 732.513(1))
The devise is not invalid because the trust is revocable or amendable, or because it was amended after the will was signed (§ 732.513(2)).
The pour-over will still has to go through probate. It only catches assets that weren’t in the trust, which is why funding the trust during life matters.
When the Trust Itself Is Defective
"The testamentary aspects of a revocable trust, executed by a settlor who is a domiciliary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state." (§ 736.0403(2)(b))
Two witnesses. Signed at the end. If a Florida resident’s trust (or amendment) wasn’t signed that way, the provisions saying who gets what at death can fail, even though the pour-over will is perfectly valid. What happens next depends on the documents and the facts, and it is litigated.
Two Fights, Two Clocks
- Will: An interested person served with a notice of administration has 3 months after service to object to the will’s validity (§ 733.212).
- Trust: A contest of a trust that was revocable at death is barred at the earlier of the Chapter 95 period or 6 months after the trustee sends a copy of the trust and the statutory notice (§ 736.0604).
Miss one and win the other, and you may have won nothing.
The Trust Can Be Reached for Estate Debts
A revocable trust is liable for estate administration expenses and the decedent’s obligations to the extent the probate estate is insufficient (§ 733.707(3)). A pour-over plan doesn’t wall the trust off from creditors.
Check the Pair Together
Same date? Same trustee named? Does the will identify the right trust? Was every amendment signed with will formalities? Mismatches between the two documents are where these cases start.
Watch: the videos behind this article
Invalid Trust in a Valid Will? Florida Pour-Over Will Dispute Explained
More Short Videos on This Issue
Watch the Real Appellate Arguments
These are recordings of actual Florida appellate oral arguments over defective trusts and valid wills, posted on the channel. An argument is not a ruling: read the written opinion before relying on any outcome.
Florida Appellate Court Oral Argument: Defective Trust vs Valid Will Probate Fraud Case
Go Deeper
- Does a Will Avoid Probate in Florida? No. Here’s What a Will Actually Does
- When a Revocable Trust Doesn’t Work: Unfunded Trusts and Trust Litigation
- Do You Need a Trust in Florida?
Frequently Asked Questions
What is a pour-over will in Florida?
A will that leaves probate assets to the trustee of the person’s trust. Section 732.513 allows it if the trust exists in writing when the will is signed, or is signed at the same time, and is identified in the will.
Does a pour-over will avoid probate?
No. Assets passing under a pour-over will go through probate before reaching the trust. Only assets already titled in the trust avoid probate.
Does a Florida revocable trust have to be witnessed?
For a Florida resident, the parts of a revocable trust that dispose of property at death are invalid unless the trust is signed with the formalities required for a will (§ 736.0403(2)(b)).
Are the deadlines different for contesting a will and a trust in Florida?
Yes. Will objections are due 3 months after service of the notice of administration (§ 733.212). Trust contests can be barred 6 months after the trustee’s notice (§ 736.0604).
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a will contest lawyer for a will or trust dispute, 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.
