Probate vs. trust administration
After a death, the procedural path depends on what assets are where. Probate handles assets in the decedent's name; trust administration handles assets in the trust. Most estates touch both. Here's how they compare.
When someone dies in Florida, the legal procedure for transferring their assets depends on how those assets were titled at death. Assets held in the decedent's individual name flow through probate. Assets held in a revocable living trust flow through trust administration. They're parallel processes, often handled simultaneously.
Most estates touch both — almost no one funds 100% of their assets into a trust, and most have at least one stray probate asset (the new car, the forgotten investment account). Below: how the two paths compare, and what to do when both apply.
Probate — court process for individual-name assets
- Court involvement: yes — probate is supervised by the circuit court in the county where the decedent lived (or for ancillary, where Florida property is located).
- Personal representative (PR): appointed by the court via Letters of Administration. Owes fiduciary duties to estate and beneficiaries.
- Public: filings are public records. Inventory, accountings, distributions all visible to anyone who looks.
- Creditor period: formal admin runs a 90-day creditor notice. Provides finality after the period closes.
- Timeline: 6–12 months typical for formal admin; 4–8 weeks for summary admin.
- Cost: our flat fees: $1,950 (summary), $2,950 (formal), plus $400–$1,500 in court/recording costs.
Trust administration — out-of-court process
- Court involvement: no, generally. Trust administration is private.
- Successor trustee: takes over per the trust document. Owes fiduciary duties to trust and beneficiaries.
- Private: the trust document and trust assets are not public records (unless real estate is held by the trust, which is publicly recorded).
- No creditor period: trustees may give notice to creditors voluntarily but aren't required. This is a double-edged sword — faster distribution but less protection.
- Timeline: variable; can be 2–6 months for simple trusts, longer for complex ones.
- Cost: depends on complexity. Simple trust admin starts around $2,000–$3,000. Complex (multiple sub-trusts, business interests, multi-state) higher.
When both apply — the common case
Most estates we administer touch both. A typical pattern:
- Decedent has a revocable trust holding the home and primary investment account.
- Decedent also has a checking account, IRA, and car titled individually.
- Pour-over will says everything else gets transferred into the trust at death.
- Probate handles: the checking account (small, summary admin), the car (often handled via DMV affidavit), and the pour-over of any other stray assets.
- Trust administration handles: the home (transferred per trust document), the investment account (distributed per trust), and anything poured over from probate.
- IRA: passes by beneficiary designation outside both probate and trust.
Two parallel processes, one family, one attorney coordinating both. We handle this regularly.
Key differences in detail
Probate filings are public. Anyone can search the court records and see who inherited what, the inventory of assets, and the final accounting. Trust administration is private — the trust document is generally not filed publicly.
Practical impact: families with privacy concerns (high-net-worth, public profile, family disputes they don't want aired) often plan for trust over probate.
Speed and certainty
Trust administration is generally faster than probate for distribution, because there's no 90-day creditor period.
But probate's creditor period provides certainty — after 90 days, untimely creditor claims are barred. Trust beneficiaries don't have that protection unless the trustee voluntarily notices creditors.
Practical impact: trust beneficiaries who receive distributions before any creditor surfaces can theoretically be on the hook if the trustee paid them prematurely. Probate beneficiaries enjoy the creditor-bar.
Court oversight
Probate has built-in court oversight: inventory filed, accounting reviewed, beneficiaries notified, judge approves discharge. This protects beneficiaries from PR misconduct (hard to mismanage a probate estate without the court noticing).
Trust administration has less oversight by default. Beneficiaries' protection is the trustee's fiduciary duty + the right to sue if breached. Most cases run smoothly; disputes that arise are messier and often more expensive than probate disputes.
Practical impact: if you trust your trustee implicitly, trust admin is faster and cheaper. If you don't, probate's oversight may be worth its costs.
Cost
Trust administration is usually cheaper than formal probate but typically about the same as summary probate. Trust drafting upfront ($2,500–$3,000) is more expensive than will drafting ($400–$750), but trust administration at death is faster.
Lifetime + death cost comparison:
- Will path: $400–$750 to draft, $1,950 (summary) or $2,950 (formal) at death = total $2,350–$3,700.
- Trust path: $2,500–$3,000 to draft, $2,000–$3,000 in trust admin at death = total $4,500–$6,000.
- Trust path saves when probate avoidance is the goal — but the savings only materialize if the trust is properly funded and used.
When to use which
- Small estate under $150k — summary admin is fast and cheap; trust isn't worth the funding effort.
- Most assets pass by beneficiary designation — life insurance, IRAs, joint accounts handle the bulk; probate only catches the residual.
- You won't fund a trust — unfunded trusts are paperwork. If you won't reliably retitle assets, stick with a will.
- Simple family — single marriage, all kids together, clear beneficiaries.
Trust pays off
- Florida home + meaningful financial assets — keeps the home and accounts out of probate.
- Privacy matters — high-net-worth, public profile, contested family situation.
- Out-of-state property — a trust avoids ancillary probate in other states.
- Staged distribution — 'half at 25, half at 30,' or 'income only,' or 'for education and health.'
- Incapacity planning — successor trustee can manage assets during incapacity without guardianship court process.
- Blended family — careful trust drafting handles QTIP arrangements, children from prior marriages, etc.
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