Florida is home to a large and growing retiree population, and estate planning is a high priority for Florida residents. The choice between a simple will and a revocable living trust is one of the most important decisions in any Florida estate plan. Florida's probate process is expensive relative to most states, the homestead rules create unique constraints on devising real property, and out-of-state real property can trigger ancillary probate in multiple jurisdictions. For most Florida residents with assets above a modest threshold, a revocable trust is the cornerstone of a sound estate plan.
Florida Will Requirements Under Florida Statutes §732
Florida's will requirements are straightforward. Under Florida Statutes §732.502, a valid Florida will must be: (1) in writing, (2) signed by the testator at the end of the will, or by another person in the testator's presence and at the testator's direction, and (3) attested by two witnesses who sign the will in the presence of the testator and in the presence of each other.
Unlike Pennsylvania, Florida does not recognize holographic wills (wills entirely in the testator's handwriting without witnesses). Unlike New York, Florida does not require a "publication" ceremony. Florida does permit self-proving wills — wills accompanied by an affidavit signed by the testator and witnesses before a notary public — which streamline the probate process by eliminating the need for witness testimony at probate. A self-proving affidavit is strongly recommended for all Florida wills.
The Florida Homestead Rules: Unique Constraints on Devising Real Property
Florida's homestead protection is among the strongest in the United States, and it creates unique constraints on how a Florida homestead property can be devised. Under the Florida Constitution, Article X, Section 4, and implemented in Florida Statutes §732.4015, a homestead may not be devised if the owner is survived by a spouse OR minor children. The restrictions differ depending on who survives:
- Surviving spouse and no minor children: The homestead passes to the surviving spouse as a life estate, with a vested remainder in the testator's lineal descendants. The testator cannot leave the homestead outright to anyone else — not to a charity, not to a friend, not in trust.
- Surviving minor children (regardless of spouse): The homestead cannot be devised at all — it passes under intestate succession to the heirs. This rule applies even if the testator left a will attempting to devise the property differently.
- No surviving spouse, no minor children: The testator may freely devise the homestead to anyone, including in trust.
These homestead rules cannot be contracted around in a will. Attempting to devise a homestead in violation of these rules is not merely a tax or administrative issue — the devise is void, and the property passes as if the will provision did not exist. Florida estate planners must address the homestead rules explicitly in every estate plan for a client who owns Florida real property.
Why Florida Revocable Trusts Make Sense: Avoiding Probate
Florida's formal probate process is governed by Florida Statutes Chapters 731–735. The probate fees — both statutory fees for the personal representative (executor) and attorney's fees — are based on a percentage of the "inventory value" of the probate estate. Under Florida Statutes §733.6171, a reasonable fee for the attorney (and similarly for the personal representative) is generally 3% of the first $1 million of estate value, 2.5% of the next $4 million, and so on.
For a Florida estate with $1 million in probate assets, the combined attorney and personal representative fees can easily reach $60,000–$80,000. For a $2 million estate, $100,000 or more in fees is common. These fees are paid from the estate assets before distribution to beneficiaries — effectively reducing what heirs actually receive.
A revocable living trust — sometimes called a "living trust" or "inter vivos trust" — avoids probate entirely for assets that are properly titled in the trust. When assets are held in the trust, they pass directly to the named beneficiaries upon the grantor's death without going through the probate court. The successor trustee (named in the trust document) administers the distribution privately, without court supervision and without the statutory fees that apply in probate.
Revocable Trust Under Florida Statutes §736
Florida's Florida Trust Code, codified at Florida Statutes Chapter 736, governs the creation and administration of trusts in Florida. A revocable living trust is created when the grantor (the person creating the trust) signs a trust agreement and transfers assets into the trust. The grantor typically names themselves as the initial trustee, maintains full control of trust assets during their lifetime (including the right to amend or revoke the trust entirely), and names a successor trustee to manage and distribute assets after the grantor's death or incapacity.
Key advantages of a Florida revocable trust beyond probate avoidance:
- Privacy: Unlike a will, which becomes a public record upon probate, a revocable trust is a private document. The distribution of trust assets does not appear in any public court record.
- Incapacity planning: A revocable trust provides a mechanism for managing assets if the grantor becomes incapacitated — the successor trustee steps in immediately without any court proceeding. A will, by contrast, only operates at death; a standalone durable power of attorney covers incapacity, but financial institutions sometimes question powers of attorney.
- Out-of-state property: If a Florida resident owns real property in another state, that property would require ancillary probate in the other state (in addition to Florida probate) if not held in trust. Transferring out-of-state property into a revocable trust eliminates the need for ancillary probate entirely.
- Continuity of management: Trust assets can be managed continuously across death and incapacity without gaps in authority. This is particularly valuable for rental properties, businesses, or investment portfolios that require active management.
The Pour-Over Will: Still Required Alongside the Trust
Even with a revocable trust, every Florida estate plan should include a pour-over will. A pour-over will is a simple will that says, in effect, "anything I own at my death that is not already in my trust should be transferred to my trust and distributed according to the trust terms." This serves as a safety net for assets that the grantor forgot to transfer to the trust, acquired after creating the trust, or that cannot be held in trust (such as certain retirement accounts).
The pour-over will must be executed with the same formalities as any other Florida will (two witnesses, notarized for self-proving status). Assets that pass through the pour-over will still go through a brief probate process, but because the trust is designed to hold most major assets, the pour-over probate is typically small and inexpensive.
Successor Trustee vs. Executor: Different Roles, Similar Duties
A source of confusion for many Florida estate planning clients is the distinction between the roles of executor (personal representative) and successor trustee. These are different positions with different legal responsibilities:
Personal representative (executor): Named in the will. Responsible for managing the probate estate — gathering assets, paying debts and taxes, and distributing to beneficiaries under court supervision. The personal representative's authority comes from the Florida probate court and is subject to court oversight. Fees are governed by Florida Statutes §733.6171.
Successor trustee: Named in the trust agreement. Responsible for managing trust assets after the grantor's death or incapacity — gathering trust assets, paying debts from trust assets (if the trustee is authorized to do so), and distributing to trust beneficiaries. The successor trustee's authority comes from the trust document itself, not from any court. No court supervision is required for routine trust administration.
In a trust-centered estate plan, the successor trustee does the heavy lifting of asset distribution. The personal representative handles the residual probate assets that passed through the pour-over will. It is common (and efficient) to name the same person as both successor trustee and personal representative, though they may also be different people depending on the grantor's preferences.
Florida Lady Bird Deed: A Simple Alternative for Single Property Owners
For Florida residents who own a single piece of real property and want to avoid probate on that property without the cost of a full revocable trust, the "Lady Bird deed" (enhanced life estate deed) is an effective alternative. A Lady Bird deed allows the property owner to retain full control and ownership of the property during their lifetime — including the right to sell, mortgage, or transfer the property — while naming a beneficiary who automatically inherits the property at death without probate.
Unlike a traditional life estate deed, a Lady Bird deed does not give the beneficiary any current ownership rights. The grantor retains full fee simple ownership with the right to revoke the beneficiary designation at any time. At death, the property passes automatically to the named beneficiary outside of probate, by operation of law, without any court proceeding.
Lady Bird deeds are particularly popular for Florida homesteads being left to adult children when there is no surviving spouse or minor child (so the homestead restrictions do not apply). They are also useful for vacation homes, rental properties, and other real estate that a property owner does not want to go through probate.