Estate planning documents compared.
Each document's page has the full rules and citations.
Trust, will and probate compared.
Each cell states one rule and links to the Florida Statutes (2026), the Florida Probate Rules or the court rule that sets it.
| Topic | Revocable trust | Will | Probate |
|---|---|---|---|
| Governing law | Florida Trust Code, ch. 736. | Execution and effect: § 732.502 and ch. 732. | Ch. 733 (administration), ch. 735 (summary administration) and the Florida Probate Rules. |
| Who signs | The settlor. The testamentary aspects need will formalities (§ 736.0403(2)(b)). | The testator signs at the end before at least two attesting witnesses, who sign in the presence of the testator and of each other (§ 732.502(1)). | The petitioner verifies the petition (Fla. Prob. R. 5.200). |
| Property it controls | Property transferred to the trustee, or declared held as trustee (§ 736.0401). | Property in the testator's name. A will does not prove title until it is admitted to probate (§ 733.103(1)). | The estate subject to administration. Summary administration applies at $150,000 or less after exempt property, or when the decedent has been dead more than 2 years (§ 735.201(2); ch. 2026-57, § 7; Fla. Prob. R. 5.530). |
| Court role | No continuing court supervision unless a court orders it (§ 736.0201(3)). | The custodian deposits the will with the clerk within 10 days after learning of the death (§ 732.901(1)). | A court proceeding opened by a verified petition (Fla. Prob. R. 5.200). |
| Public access | The trustee's notice of trust states the settlor's name, date of death, trust title and date, and the trustee's name and address (§ 736.05055(2)). Qualified beneficiaries can request a copy of the instrument (§ 736.0813(1)(c)). | The clerk keeps the original will for at least 20 years (§ 732.901(4)). Court records are open to the public unless a rule limits access (Fla. R. Gen. Prac. & Jud. Admin. 2.420(a)). | The contents of the court file are court records (Rule 2.420(b)(1)(A)). |
| Time limits | A challenge to validity is barred at the earlier of the chapter 95 period or 6 months after the trustee sends a copy of the trust and a notice (§ 736.0604). The trustee gives qualified beneficiaries notice within 60 days after learning the trust became irrevocable (§ 736.0813(1)(b)). | Objection to the will's validity: 3 months after service of the notice of administration (§ 733.212(3)). | Creditor claims: 3 months after first publication of the notice to creditors, or 30 days after service on a creditor if later (§ 733.702(1)). Outer limit: 2 years after death (§ 733.710(1)). |
| Creditors | Reachable by the settlor's creditors during life, to the extent the property would not otherwise be exempt (§ 736.0505(1)(a)). After death, liable for the estate's expenses and obligations when the estate is insufficient (§ 733.707(3)). | The estate pays expenses and obligations in eight classes of priority (§ 733.707(1)). | The trustee pays the personal representative the amounts certified in writing as required for the estate's expenses and obligations (§ 736.05053(1)). |
| Changing it | The settlor may revoke or amend unless the terms expressly say the trust is irrevocable (§ 736.0602(1)). | Amend by codicil, executed with the same formalities as a will (§ 732.502(5)). | Not applicable. |
| Marriage, birth, adoption | None of these revokes the trust (§ 736.1105(1)). | None of these revokes the will. A pretermitted child or spouse inherits under §§ 732.301 and 732.302 (§ 732.507(1)). | Not applicable. |
| Divorce | Provisions that affect the spouse are void on dissolution of the marriage, with three exceptions (§ 736.1105(2)). | Same rule for the will (§ 732.507(2)). | Not applicable. |
| Surviving spouse's elective share | Property transferred by the decedent and revocable by the decedent alone is in the elective estate (§ 732.2035(5)). | The probate estate is in the elective estate (§ 732.2035(1)). | The election is due by the earlier of 6 months after service of the notice of administration on the spouse or 2 years after death, unless extended (§ 733.212(2)(e)). |
Homestead and trusts
The Florida Constitution exempts a homestead owned by a natural person from forced sale under process of any court. Within a municipality the limit is one-half acre of contiguous land. Outside a municipality it is 160 acres of contiguous land and improvements. The exception list covers taxes and assessments, obligations contracted for the purchase, improvement or repair of the property, and labor performed on the realty (Art. X, § 4(a)(1), Fla. Const.). The exemption inures to the surviving spouse or heirs of the owner (Art. X, § 4(b)).
Devise of homestead
Homestead is not subject to devise if the owner is survived by a spouse or minor child, except that it may be devised to the owner's spouse when there is no minor child (Art. X, § 4(c); § 732.4015(1), Fla. Stat. (2026)).
| Owner is survived by | Rule |
|---|---|
| A spouse and a minor child | Homestead is not subject to devise. |
| A minor child and no spouse | Homestead is not subject to devise. |
| A spouse and no minor child | Homestead may be devised only to the spouse. |
| No spouse and no minor child | The limit on devise does not apply. |
Homestead held in a revocable trust
The limit still applies. For § 732.4015 the owner includes the grantor of a trust described in § 733.707(3) as if the interest held in trust were owned by the grantor, and a devise includes a disposition by trust of the part of the trust estate that would be the grantor's homestead (§ 732.4015(2)). A proceeding to determine the homestead status of real property owned by a trust may be filed in the settlor's probate proceeding if the settlor was treated as the owner under § 732.4015 (§ 736.0201(7)).
Creditors
The property of a revocable trust is subject to the claims of the settlor's creditors during the settlor's lifetime only to the extent the property would not otherwise be exempt by law if owned directly by the settlor (§ 736.0505(1)(a)).
Property tax exemption
A person who, on January 1, has legal title or beneficial title in equity to real property and in good faith makes it a permanent residence is entitled to the homestead exemption from property taxes (§ 196.031(1)(a)). Applications go to the property appraiser in the county where the property is located, and the property appraiser determines whether a parcel is entitled to an exemption (Florida Department of Revenue).
Signing and witnessing rules
Sorted by document. Each row cites the section that sets the rule.
| Document | Rule | Authority |
|---|---|---|
| Will | The testator signs at the end before at least two attesting witnesses, who sign in the presence of the testator and of each other. A self-proving affidavit before an officer authorized to administer oaths is optional. | § 732.502(1); § 732.503(1) |
| Revocable trust | The testamentary aspects need the formalities for executing a will. | § 736.0403(2)(b) |
| Deed of real estate | Signed in the presence of two subscribing witnesses. To be recorded, the execution must be acknowledged or proved by a subscribing witness. | § 689.01(1); § 695.03 |
| Durable power of attorney | Signed by the principal and two subscribing witnesses, and acknowledged before a notary public or as provided in § 695.03. Authority to create, amend or revoke a trust, or to make gifts, needs the principal's signature or initials next to that authority. | § 709.2105(2); § 709.2202(1) |
| Designation of health care surrogate | Signed by the principal in the presence of two subscribing adult witnesses. The surrogate cannot witness. At least one witness is neither the principal's spouse nor a blood relative. | § 765.202(1)-(2) |
| Living will | Signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative. | § 765.302(1) |
Estate planning questions
Does a will avoid probate in Florida?
No. A will does not prove title to the testator's property until it is admitted to probate (§ 733.103(1), Fla. Stat. (2026)). The custodian of a will must deposit it with the clerk of the court having venue within 10 days after receiving information that the testator is dead (§ 732.901(1)).
Is it better to have a will or a trust in Florida?
The Florida Statutes treat them as different instruments and do not rank them. A will controls property in the testator's name and must be admitted to probate (§ 733.103(1)). A revocable trust controls property transferred to the trustee (§ 736.0401) and is not subject to continuing court supervision unless a court orders it (§ 736.0201(3)). A will can leave remaining property to the trustee of a trust that exists when the will is made (§ 732.513(1)). The comparison table above sets the rules side by side.
What is the probate threshold in Florida for 2026?
Summary administration is available when the value of the entire estate subject to administration in Florida, less exempt property, does not exceed $150,000, or when the decedent has been dead more than 2 years (§ 735.201(2), Fla. Stat. (2026)). Section 7 of ch. 2026-57, Laws of Fla., changed the figure from $75,000, and section 14 of the act sets July 1, 2026 as its effective date. Summary administration is still a court proceeding, opened by a verified petition (Fla. Prob. R. 5.530(a)).
Are wills public record in Florida?
A will must be deposited with the clerk within 10 days after the custodian learns of the death, and the clerk keeps the original for at least 20 years (§ 732.901(1), (4), Fla. Stat. (2026)). The public has access to all records of the judicial branch except as the rule provides, and court records are the contents of the court file (Fla. R. Gen. Prac. & Jud. Admin. 2.420(a), (b)(1)(A)). Rule 2.420 lists records that are confidential; the clerk of the county where the case is filed can say whether a particular record is open.
Does Florida have an estate tax in 2026?
No. A federal change eliminated Florida's estate tax on people who died after December 31, 2004, and personal representatives have not had to file Form DR-312 or DR-313 since July 1, 2023 (Florida Department of Revenue). The federal basic exclusion amount for 2026 is $15,000,000 (IRS).
Rachel B. Schadt, Florida Bar #127500
Rachel B. Schadt is a Florida attorney in Sarasota. The estate planning pages on this site cite the Florida Statutes, the Florida Probate Rules and other official sources. Rachel is not accepting new clients until late October 2026.
Matters that cannot wait: The Florida Bar Lawyer Referral Service, 800-342-8011.
Sources
Last checked: October 16, 2026. Statute links open the 2026 Florida Statutes on flsenate.gov. The Florida Probate Rules (Oct. 15, 2026 edition) and the Rules of General Practice and Judicial Administration (July 1, 2026 edition) are listed on The Florida Bar rules page.
Florida Statutes (2026)
- § 736.0401, Fla. Stat. (2026)
- § 736.0403, Fla. Stat. (2026)
- § 736.0201, Fla. Stat. (2026)
- § 736.0505, Fla. Stat. (2026)
- § 736.05053, Fla. Stat. (2026)
- § 736.05055, Fla. Stat. (2026)
- § 736.0604, Fla. Stat. (2026)
- § 736.0602, Fla. Stat. (2026)
- § 736.0813, Fla. Stat. (2026)
- § 736.1105, Fla. Stat. (2026)
- § 733.103, Fla. Stat. (2026)
- § 733.212, Fla. Stat. (2026)
- § 733.702, Fla. Stat. (2026)
- § 733.707, Fla. Stat. (2026)
- § 733.710, Fla. Stat. (2026)
- § 732.2035, Fla. Stat. (2026)
- § 732.4015, Fla. Stat. (2026)
- § 732.502, Fla. Stat. (2026)
- § 732.503, Fla. Stat. (2026)
- § 732.507, Fla. Stat. (2026)
- § 732.513, Fla. Stat. (2026)
- § 732.901, Fla. Stat. (2026)
- § 735.201, Fla. Stat. (2026)
- § 689.01, Fla. Stat. (2026)
- § 695.03, Fla. Stat. (2026)
- § 709.2105, Fla. Stat. (2026)
- § 709.2202, Fla. Stat. (2026)
- § 765.202, Fla. Stat. (2026)
- § 765.302, Fla. Stat. (2026)
- § 196.031, Fla. Stat. (2026)
- Ch. 732, Fla. Stat. (2026)
- Ch. 733, Fla. Stat. (2026)
- Ch. 735, Fla. Stat. (2026)
- Ch. 736, Fla. Stat. (2026)