Will vs. Trust in Florida: Choosing the Right Tool to Avoid Probate

When it comes to estate planning in Florida, one of the most critical decisions you’ll make is how to structure the transfer of your assets after death. A Last Will and Testament and a Trust (typically a revocable living trust) serve different purposes—and choosing the right tool can help your loved ones avoid the time, costs, and public exposure of probate.

What Is Probate in Florida?

Probate is a court-supervised process that validates a will and oversees asset distribution, payment of debts, and estate administration. During probate, assets are made public, creditors are notified, and the court monitors each step—often leading to delays, legal complexity, and increased costs.

1. Probate: Yes or No?

• Will: If your estate is governed by a will, it must pass through probate. The court confirms the will's validity and supervises the process of asset distribution.

• Trust: Assets held in a properly funded revocable living trust generally bypass probate entirely, enabling a smoother and faster transfer.

2. Privacy vs. Public Exposure

• Will: Probate makes the will—and thus its contents—a matter of public record. Anyone can access the document and see your estate’s details.

• Trust: A trust arrangement remains private. While deeds for real property may still need public recordation, the trust’s contents and instructions remain confidential.

3. Managing Incapacity

• Will: Only takes effect after death. If you become incapacitated, the court may appoint a guardian to manage your affairs.

• Trust: A successor trustee can step in immediately upon your incapacitation, ensuring continued asset management without court involvement.

4. Flexibility & Control

• Will: You can amend your will through formal methods like codicils or by drafting a new will, both requiring legal formalities.

• Trust: A revocable living trust offers greater adaptability—you can modify beneficiaries, assets, or trustees during your lifetime with less formality.

5. When Wills Still Matter

Even with a trust, having a 'pour-over will' is important. This backstop ensures that any assets not formally transferred into the trust before death are redirected into it through probate.

6. Potential Pitfalls of Trusts

• If assets aren't properly funded into the trust during your lifetime, they may still end up in probate.

• Trusts can incur higher upfront costs and require more maintenance than a simple will.

Quick Comparison

Will (Florida)

• Probate: Required

• Privacy: Public Record

• Incapacity Planning: No

• Flexibility: Amend via Codicil or new Will

• Backup Needed: N/A - primary document

• Cost & Complexity: Generally lower upfront cost

Trust (Revocable Living)

Probate:

• Probate: Avoided (if properly funded)

• Privacy: Private

• Incapacity Planning: Yes - successor trustee manages assets

• Flexibility: Easily modifiable

• Backup Needed: Yes - pour over will recommended

• Cost & Complexity: Higher initial cost, but potentially cost savings later

When Should You Use Each?

• Will Only: Best for individuals with straightforward estates—minimal assets, no real estate, no planning for incapacity.

• Trust (Plus Pour-Over Will): Ideal for anyone with significant assets, real property, multiple beneficiaries, privacy concerns, or who seeks an efficient, court-free transfer.

Many estate planning professionals recommend using both tools together for comprehensive protection and flexibility. Avoiding probate, protecting your privacy, and ensuring continuity in estate administration shouldn’t be left to chance. Let our firm help you design a personalized plan—whether that includes a will, a trust, or both.

Take the Next Step in Your Florida Estate Plan

Contact us today for a consultation tailored to your needs and secure your legacy with confidence.