Will vs. trust in Florida: what each does, how each is signed and what each avoids
A will directs property that goes through probate. A revocable trust holds title during life so funded assets pass without probate. This guide compares signing rules, probate, privacy, creditors, divorce, the elective share, homestead and tax, each with its Florida statute.
A will is a written instrument, signed with the formalities in § 732.502, Fla. Stat. (2026), that takes effect at death and directs the property in the decedent's name. That property is the probate estate, so a will operates through a court proceeding. A revocable trust is an agreement that holds title to the assets the settlor has transferred into it, which the settlor can change or revoke unless the instrument says otherwise (§ 736.0602(1)). Assets titled in the trust at death pass under the trust terms without probate. The Florida Bar's consumer pamphlet (The Revocable Trust in Florida, updated December 2018) states that “funding” is critical, and that people who do not fully fund a trust often need a probate administration for the assets left out as well as a trust administration.
Most plans that use a revocable trust also include a “pour-over” will that leaves any asset still in the decedent's name to the trust (§ 732.513). That asset still goes through probate before it reaches the trust.
A revocable trust does not reduce federal estate tax: 26 U.S.C. § 2038 includes in the gross estate property whose enjoyment the decedent could alter, amend or revoke (LII text). The Bar's pamphlet states that the common belief that revocable trusts save estate taxes is not entirely accurate, because the grantor's retained interest and power cause the trust to be included in the taxable estate (Fla. Bar, The Revocable Trust in Florida). Federal tax applies above the filing threshold, $15,000,000 for 2026 deaths (IRS, Estate tax). Florida imposes no estate tax for deaths after December 31, 2004 (Florida DOR).
Last checked: October 17, 2026. General information with official sources, not legal advice for a particular plan.
Side-by-side comparison
| Topic | Will | Revocable trust | Source |
|---|---|---|---|
| Signing | In writing, signed by the testator at the end (or by another in the testator's presence and at the testator's direction), before at least two attesting witnesses who sign in the testator's presence and each other's. A codicil follows the same formalities. | For a settlor domiciled in Florida at execution, the testamentary parts (those that dispose of property at the settlor's death) are invalid unless the instrument is executed with the formalities for a will. The settlor must have capacity and intent, there must be a definite beneficiary, the trustee must have duties, and one person cannot be the only trustee and only beneficiary. A trust of land must also satisfy § 689.05. | § 732.502(1), (5); § 736.0402(1); § 736.0403(2) |
| Notary | Not required for validity. A self-proving affidavit, made before an officer authorized to administer oaths, lets the will be proved without testimony from the witnesses. | Not required by the creation statute. Deeds and some institutions have their own requirements. | § 732.503; § 736.0403 |
| Electronic form | An electronic will is allowed. An electronic signature satisfies the signing requirement, witnesses can sign through notary-supervised audio-video technology, and self-proof requires a qualified custodian. | Follow the will formalities for the testamentary parts. | §§ 732.521 to 732.526 |
| When it takes effect | At death. It controls nothing during life. | On signing, for assets transferred in. While the trust is revocable, the trustee's duties are owed exclusively to the settlor. | § 736.0603(1) |
| Changing or revoking | A later inconsistent will or codicil, a later writing executed with will formalities that declares revocation, or a physical act such as burning or tearing with intent to revoke. | By the method in the trust, or if none, by a later will that refers to the trust, or by other clear and convincing evidence of intent. | §§ 732.505 and 732.506; § 736.0602(3) |
| Probate | The will is deposited with the clerk and the assets in the decedent's name are administered in court, unless the estate qualifies for a small-estate procedure. | Assets titled in the trust do not go through probate. Assets still in the decedent's name do, and pass under the pour-over will. | § 732.901; § 732.513; Fla. Bar pamphlet |
| Court record and privacy | A deposited or filed will is a court record, open to the public. Inventories and accountings filed in the estate are confidential. | The trust instrument is not filed. After the settlor's death, the trustee of a trust that must contribute to estate expenses files a notice of trust naming the settlor, date of death, trust title and date, and the trustee's name and address. | Fla. R. Gen. Prac. & Jud. Admin. 2.420(a); § 733.604(1)(b); § 736.05055 |
| Incapacity | No effect during life. A power of attorney or guardianship covers decisions during incapacity. | The trustee continues to manage the trust assets under the trust terms. The trust does not cover assets outside it. | Fla. Bar pamphlet; power of attorney guide |
| Creditors during life | The testator owns the assets and creditors reach them. | Revocable trust property is subject to the settlor's creditors during life to the extent it would not be exempt if owned directly. | § 736.0505(1)(a) |
| Creditors after death | Claims are filed in the probate within the claims period and barred 2 years after death. | A trust the decedent could have revoked is liable for estate expenses and obligations to the extent the probate estate cannot pay them, and the trustee must pay amounts the personal representative certifies. | § 733.702; § 733.707(3); § 736.05053 |
| Divorce | Any provision affecting the testator's spouse is void on dissolution of marriage, and the will is read as if the spouse died then, unless the will, a later will or the judgment provides otherwise. | The same rule applies to provisions affecting the settlor's spouse in a revocable trust. | § 732.507(2); § 736.1105(2) |
| Later marriage or birth | A later marriage, birth or adoption does not revoke a will; a pretermitted spouse or child takes the statutory share. | A later marriage, birth or adoption does not revoke a revocable trust. | § 732.507(1); § 732.301; § 736.1105(1) |
| Surviving spouse's elective share | The spouse may elect 30 percent of the elective estate. | Revocable transfers, and the protected homestead, are in the elective estate, so a revocable trust does not defeat the elective share. | § 732.2065; § 732.2035 |
| Homestead | Homestead cannot be devised if a spouse or minor child survives, except to the spouse when there is no minor child. | For that rule a trust disposition counts as a devise, and the grantor of a revocable trust is treated as the owner of homestead held in the trust. | § 732.4015; Art. X, § 4(c), Fla. Const. |
| After death | The personal representative gathers assets, publishes notice, pays claims and files an accounting and petition for discharge within 12 months of letters unless extended. | The trustee gives notice to qualified beneficiaries within 60 days after learning that a formerly revocable trust became irrevocable, then administers and distributes under the trust. The Bar describes this as similar to a probate administration. | Fla. Prob. R. 5.400(c); § 736.0813(1)(b); Fla. Bar pamphlet |
Sources: the sections linked in each row, 2026 Florida Statutes. Ch. 2026-57, Laws of Fla., effective July 1, 2026 (act text), changed the small-estate amounts in §§ 735.201, 735.302, 735.303 and 735.304. It did not change the sections in this table.
What a will does
- Disposes of property in the decedent's name. Devises under a will pass through the estate. A devise to a trustee of a trust in existence when the will is made is valid even if the trust is amendable or revocable (§ 732.513(1)-(2)).
- Is deposited with the clerk. The custodian must deposit the original with the clerk within 10 days of learning of the death (§ 732.901(1)), and the clerk keeps it at least 20 years (§ 732.901(4)).
- Can be self-proved at signing. The testator's acknowledgment and the witnesses' affidavits before an officer let the court admit the will without calling the witnesses (§ 732.503).
- Does not avoid probate. Probate may be a small-estate procedure. Summary administration is available at $150,000 or less after exempt property, or after 2 years from death (§ 735.201(2)). See do I need probate.
- Does not reach assets with a beneficiary designation. Life insurance goes to the named beneficiary (§ 222.13(1)), a pay-on-death account to the named beneficiaries (§ 655.82(3)) and a survivorship account to the survivor (§ 655.79), whatever the will says. See how each asset passes.
What a revocable trust does
- Holds title during life. The settlor is commonly also the trustee. The instrument can be revoked or amended unless it states it is irrevocable (§ 736.0602).
- Passes funded assets without probate. The Bar's pamphlet states that only assets owned in the decedent's individual name require probate and that assets held in trust avoid it (Fla. Bar pamphlet).
- Does not shield property from the settlor's creditors. Property of a revocable trust is subject to the settlor's creditors during life (§ 736.0505(1)(a)), and the trust answers for estate obligations after death (§ 733.707(3)).
- Requires funding. Real property needs a deed to the trustee; accounts need retitling or a beneficiary designation; the Bar notes the deed for trust real estate should consider mortgages, title and homestead restrictions. See trust funding.
- Requires post-death notices. The trustee gives notice of the trust to qualified beneficiaries within 60 days (§ 736.0813(1)(b)) and, for a trust described in § 733.707(3), files a notice of trust with the court (§ 736.05055). See trust administration after death.
- Can be set aside by divorce. A provision for the settlor's former spouse is void after dissolution (§ 736.1105(2)).
Facts that point toward a will, a trust, or both
The statutes do not recommend a choice. Table 2 lists facts that change what each document accomplishes.
| Fact | What follows | Source |
|---|---|---|
| Real estate in Florida titled in your sole name | It is a probate asset unless transferred in life. A trust or deed can hold title so it passes outside probate. | § 731.201; Fla. Bar pamphlet |
| Real estate in another state | Probate is usually required in each state where land is owned. The Bar states transferring the land to a trust during life usually avoids that. | Fla. Bar pamphlet |
| Every asset has a survivor or a named beneficiary | No probate is needed for those assets under either document. | § 655.79; § 655.82; § 222.13 |
| Estate small enough for a small-estate procedure | Summary administration is available at $150,000 or less after exempt property, or after 2 years. Smaller procedures apply to $2,000 of bank accounts and $20,000 of intestate personal property. | § 735.201(2); § 735.303; § 735.304 |
| Privacy of asset values | Inventories and accountings in an estate are confidential; the will and the petition are court records. | § 733.604(1)(b); Fla. R. Gen. Prac. & Jud. Admin. 2.420(a) |
| Children from an earlier relationship, or a second marriage | The surviving spouse's elective share and homestead rights apply whether the plan is a will or a trust. | § 732.2035; § 732.4015; blended families guide |
| Spouse waived rights in a signed agreement | A written waiver signed before two subscribing witnesses can waive the elective share, homestead, exempt property and family allowance. | § 732.702 |
| You want to name who serves as personal representative or trustee | A will can nominate a personal representative, who has first preference for appointment. A trust names the trustee and successors. | § 733.301(1)(a) |
| A divorce or remarriage has occurred | Provisions for a former spouse in a will or revocable trust are void. A spouse by later marriage may take a pretermitted share under a will. | § 732.507; § 736.1105; § 732.301 |
Sources: the sections linked in each row. Florida Bar pamphlets are further reading; the revocable trust pamphlet is dated December 2018 and the probate pamphlet January 2021, and both predate the $150,000 summary administration figure in § 735.201(2).
Homestead and trusts
Florida's constitution bars devising homestead when the owner is survived by a spouse or minor child, except to the spouse when there is no minor child (Art. X, § 4(c), Fla. Const.). § 732.4015(2) treats the grantor of a revocable trust as the owner of homestead held in the trust and a disposition by trust as a devise, so putting homestead in a revocable trust does not avoid the devise limits. A lifetime transfer, including in trust, is not a devise if the owner kept no power to revoke or revest it (§ 732.4017(1)). A transfer in which the owner keeps a power to revoke does not get that treatment.
Tax and creditor consequences differ from descent. The Bar's pamphlet states that most counties have special requirements to maintain the homestead tax exemption for trust-held homestead, and that homestead may lose its exemption from creditors when title is held in a revocable trust, noting that the bankruptcy law on that point is unsettled (Fla. Bar pamphlet). See what a homestead protects and the Lady Bird deed guide.
Common failure points
- An unfunded trust. Assets left in the decedent's name pass under the will, which may pour them over to the trust, but only after probate (§ 732.513).
- Defective signing. A will not signed at the end, or without two witnesses signing in each other's presence, does not meet § 732.502(1). A revocable trust with testamentary provisions, signed by a settlor domiciled in Florida at execution, faces the same test under § 736.0403(2)(b).
- Outdated beneficiary forms. A beneficiary designation controls over the will for that asset. After a divorce, check them separately from the will and trust.
- Marriage after signing. A will does not provide for a later spouse by itself; the pretermitted spouse takes an intestate share unless provided for, waived or deliberately omitted (§ 732.301).
- Assuming the trust avoids creditors or taxes. See Table 1 and § 736.0505(1)(a); 26 U.S.C. § 2038 (LII).
Sources
Last checked: October 17, 2026. Statutes are cited to the 2026 Florida Statutes on the Florida Senate site.
- § 732.502, Fla. Stat. (2026), § 732.503, § 732.505, § 732.506, § 732.507, § 732.513 and §§ 732.521 to 732.526. Execution, self-proof, revocation, effect of marriage or divorce, devises to trustee, electronic wills.
- § 732.301, Fla. Stat. (2026), § 732.2035, § 732.2065, § 732.4015, § 732.4017, § 732.702 and § 732.901. Pretermitted spouse; elective estate and share; homestead devise; waiver; production of wills.
- § 733.301, Fla. Stat. (2026), § 733.604, § 733.702 and § 733.707. Preference in appointment; confidentiality; claims; trust liability.
- § 736.0402, Fla. Stat. (2026), § 736.0403, § 736.0505, § 736.05053, § 736.05055, § 736.0602, § 736.0603, § 736.0813 and § 736.1105. Trust creation, creditors, notice of trust, revocation, settlor's powers, duty to inform, effect of marriage or divorce.
- § 735.201, Fla. Stat. (2026), § 735.303 and § 735.304. Small estates; amounts from ch. 2026-57, Laws of Fla., effective July 1, 2026.
- § 655.79, Fla. Stat. (2026), § 655.82, § 222.13 and § 731.201. Joint and pay-on-death accounts; life insurance; definitions.
- Art. X, § 4, Fla. Const.. Homestead.
- Fla. Prob. R. 5.400 (Oct. 15, 2026 ed.) and Fla. R. Gen. Prac. & Jud. Admin. 2.420 (July 1, 2026 ed.), The Florida Bar.
- 26 U.S.C. § 2038 (Cornell LII); IRS, Estate tax; Florida DOR, Florida Estate Tax, accessed October 17, 2026.
- The Florida Bar, The Revocable Trust in Florida (updated December 2018) and Probate in Florida (updated January 2021). Consumer pamphlets; further reading.
What people ask us about this.
Do I need both a will and a trust?
Does a will avoid probate in Florida?
Does a revocable trust protect assets from creditors or reduce taxes?
Does a will need to be notarized in Florida?
What happens if I do not fund my trust?
What is the difference between a revocable and an irrevocable trust?
If I move out of Florida, does my Florida will or trust still work?
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