Owners who want trust, pour-over will, power of attorney and health care directives set up as one coordinated set

Pour-over Will + Trust Package

A revocable trust, a pour-over will, a durable power of attorney, a health care surrogate designation and a living will, with the Florida signing rule for each.

A pour-over package is five documents with different jobs. A revocable living trust holds property transferred to the trustee. A pour-over will leaves property still in the owner's name to that trustee. A durable power of attorney names an agent for financial matters during life. A health care surrogate designation and a living will cover medical decisions. A declaration naming a preneed guardian is an optional sixth document (§ 744.3045(1), Fla. Stat. (2026)).

What the pour-over will does. A valid devise may be made to the trustee of a trust that is evidenced by a written instrument in existence when the will is made, or signed at the same time, if the will identifies the instrument (§ 732.513(1), Fla. Stat. (2026)). The devise is not invalid because the trust is amendable or revocable, or because it was amended or revoked in part after the will was signed (§ 732.513(2)(a)-(b)). The property is disposed of under the trust terms as amended (§ 732.513(3)). Unless the will provides otherwise, it becomes part of the trust principal and is not held in a separate testamentary trust (§ 732.513(5)). An entire revocation of the trust before death invalidates the devise (§ 732.513(4)).

What the pour-over will does not do. Until a will is admitted to probate in this state or in the state where the decedent was domiciled, it is ineffective to prove title to, or the right to possession of, the testator's property (§ 733.103(1), Fla. Stat. (2026)). Property that passes under the pour-over will therefore goes through probate before it reaches the trustee. The trustee administers trust property in good faith and in accordance with the trust terms (§ 736.0801, Fla. Stat. (2026)). The pour-over will is the document that reaches property left in the owner's name, and the custodian of any will must deposit it with the clerk within 10 days after receiving information that the testator is dead (§ 732.901(1)).

Probate size. A summary administration is available when the entire estate subject to administration in Florida, less property exempt from creditors' claims, does not exceed $150,000, or when the decedent has been dead for more than 2 years (§ 735.201(2), Fla. Stat. (2026)). Ch. 2026-57, § 7, Laws of Fla., raised the figure from $75,000, effective July 1, 2026 (ch. 2026-57, § 14). Whether a pour-over estate qualifies depends on the value of what is left outside the trust.

Other sets of rules still apply. The elective estate of a surviving spouse includes the decedent's probate estate and property transferred by the decedent to the extent the transfer was revocable at death (§ 732.2035(1), (5), Fla. Stat. (2026)), so trust funding does not remove property from the elective share calculation. A federal change eliminated Florida's estate tax on people who died after December 31, 2004 (Florida Department of Revenue), and the IRS lists a 2026 federal basic exclusion amount of $15,000,000 (IRS, What's New: Estate and Gift Tax).

The fit

Who qualifies

People who own titled property and want a trust to hold it. A trust is created when the owner transfers property to a trustee or declares that the owner holds identifiable property as trustee (§ 736.0401, Fla. Stat. (2026)). The settlor needs the capacity to make a will (§ 736.0601).
People who want a will for everything outside the trust. Any person of sound mind who is 18 or older, or an emancipated minor, may make a will (§ 732.501, Fla. Stat. (2026)).
People who want an agent for finances during life. The agent must be a natural person 18 or older, or a financial institution with trust powers and a place of business in Florida (§ 709.2105(1), Fla. Stat. (2026)).
People who want a named decision-maker for medical care. A written designation of a health care surrogate is signed by the principal in the presence of two subscribing adult witnesses (§ 765.202(1), Fla. Stat. (2026)).
Parents of minor children. A parent may petition for a standby guardian of a minor (§ 744.304(1), Fla. Stat. (2026)), and a court may appoint a guardian for a minor on petition (§ 744.3021(1)). A preneed guardian declaration under § 744.3045 names a guardian for the declarant's own incapacity, not for a child.
Couples. Each spouse signs the instruments that dispose of that spouse's property. When a revocable trust is funded by more than one settlor, each may revoke or amend as to the portion attributable to that settlor's contribution, and when fewer than all settlors revoke or amend, the trustee must promptly notify the other settlors (§ 736.0602(2)(b)-(c), Fla. Stat. (2026)).

The work

What the documents cover

Revocable living trust meeting the creation requirements: settlor capacity, intent, a definite beneficiary and duties for the trustee (§ 736.0402(1), Fla. Stat. (2026))
Pour-over will: devise to the trustee of the identified trust (§ 732.513(1))
Durable power of attorney: durable by its own words (§ 709.2104, Fla. Stat. (2026)), signed by the principal and two subscribing witnesses and acknowledged before a notary (§ 709.2105(2))
Health care surrogate designation: two subscribing adult witnesses, with an alternate surrogate if explicit (§ 765.202(1), (3))
Living will: signed in the presence of two subscribing witnesses, one neither a spouse nor a blood relative (§ 765.302(1), Fla. Stat. (2026))
Optional preneed guardian declaration: signed before at least two attesting witnesses present at the same time (§ 744.3045(2))
Deed moving Florida real estate to the trustee, signed before two subscribing witnesses (§ 689.01(1), Fla. Stat. (2026))
Beneficiary designations that name the trustee, where chosen (§ 733.808(1), Fla. Stat. (2026))
Digital asset directions in the will, trust or power of attorney (§ 740.003(2), Fla. Stat. (2026))

The process

How it works, step by step

01
Decide who serves in each role
The documents name a trustee and successor trustees, a personal representative, an agent, a health care surrogate and, optionally, a preneed guardian. A will's nominee has first preference for appointment as personal representative in a testate estate (§ 733.301(1)(a)1., Fla. Stat. (2026)), and a person who is sui juris and a Florida resident at the death of the decedent is qualified to serve (§ 733.302). A health care surrogate cannot be a witness to the designation (§ 765.202(2)).
02
Draft the trust and the pour-over will together
The will must identify the trust instrument, which must be in existence when the will is made or signed at the same time (§ 732.513(1)). The trust must have a settlor with capacity, a stated intent, a definite beneficiary or permitted purpose, duties for the trustee, and a trustee and beneficiary who are not the same single person (§ 736.0402(1)).
03
Sign each document with its own formalities
A will is signed at the end by the testator before at least two attesting witnesses, who sign in the presence of the testator and of each other (§ 732.502(1)). The testamentary aspects of a revocable trust signed by a Florida domiciliary are invalid unless the trust is signed with will formalities (§ 736.0403(2)(b)). A power of attorney needs two subscribing witnesses and a notary acknowledgment (§ 709.2105(2)). The health care surrogate designation and living will each need two witnesses, with the living will requiring that one is neither a spouse nor a blood relative (§ 765.202(1), § 765.302(1)). A power of attorney witnessed remotely cannot grant the authority listed in § 709.2202(1) (§ 709.2202(6)).
04
Fund the trust
Property is trust property only if it is transferred to the trustee or declared held in trust (§ 736.0401). Real estate moves by deed signed before two subscribing witnesses (§ 689.01(1)). To be recorded, the execution must be acknowledged or proved by a subscribing witness (§ 695.03, Fla. Stat. (2026)). Death benefits of life insurance, annuities and benefit plans may be made payable to the trustee under a trust in existence at the death of the insured or participant (§ 733.808(1)).
05
Give the documents to the people who need them
The principal provides an exact copy of the health care surrogate designation to the surrogate (§ 765.202(1)). The principal is responsible for notifying the primary physician that a living will has been made (§ 765.302(2)). A preneed guardian declaration may be filed with the clerk of the court (§ 744.3045(3)). A will's custodian deposits it with the clerk within 10 days after receiving information that the testator is dead (§ 732.901(1)).

The pitfalls

Common problems

Easy on people, tough on problems. These are the issues to plan for.

Skipping the funding step. A pour-over will does not prove title until it is admitted to probate (§ 733.103(1), Fla. Stat. (2026)), so property left in the owner's name goes through probate and then to the trustee (§ 732.513(1), (5)).
Beneficiary forms that do not match the plan. Death benefits may be made payable to the trustee but need not be (§ 733.808(1), Fla. Stat. (2026)). A designation of a former spouse made before a dissolution is void as of the dissolution for the assets listed in § 732.703(3), unless an exception in § 732.703(4) applies (§ 732.703(2), Fla. Stat. (2026)).
Naming children on retirement accounts without checking the distribution rule. For a defined contribution plan, the 5-year rule is replaced by a 10-year rule for a beneficiary who is a designated beneficiary (26 U.S.C. § 401(a)(9)(H)(i)). The life-expectancy payout applies only to an eligible designated beneficiary, a class that includes the surviving spouse, a minor child of the employee, a disabled or chronically ill individual, and an individual not more than 10 years younger than the employee (26 U.S.C. § 401(a)(9)(B)(iii), (E)(ii), (H)(ii)).
Leaving out digital assets. A user may allow disclosure of digital assets, including the content of electronic communications, to a fiduciary in a will, trust or power of attorney, unless the user gave a contrary direction through a custodian's online tool that the user can modify or delete at all times (§ 740.003(1)-(2), Fla. Stat. (2026)). For a deceased user, a custodian discloses the content of communications only if the user consented or a court directs it (§ 740.006).
Treating the plan as finished after signing. Marriage, birth and adoption do not revoke a will (§ 732.507(1), Fla. Stat. (2026)), but a spouse or child omitted from a will made before the marriage or birth may take an intestate-equivalent share under § 732.301 or § 732.302. The same events do not revoke a revocable trust (§ 736.1105(1)). Dissolution of marriage voids will provisions that affect the former spouse (§ 732.507(2)) and trust provisions that affect the former spouse, for a settlor who dies on or after June 29, 2021, unless an exception applies (§ 736.1105(2)-(3)).
Confusing a preneed guardian with a guardian for a child. The declaration under § 744.3045(1) names a guardian to serve if the declarant becomes incapacitated. A guardian for a minor is appointed on petition under § 744.3021(1).
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 spouse when there is no minor child (§ 732.4015(1), Fla. Stat. (2026); Art. X, § 4(c), Fla. Const.). For that rule the owner includes the grantor of a trust described in § 733.707(3) that is evidenced by a written instrument in existence at the grantor's death, and a disposition by trust is a devise (§ 732.4015(2)).

The FAQ

Frequently asked questions

What is a pour-over will?+−

A pour-over will is a will that leaves property to the trustee of an existing trust. A valid devise may be made to the trustee of a trust evidenced by a written instrument in existence when the will is made, or signed concurrently, if the will identifies the instrument (§ 732.513(1), Fla. Stat. (2026)). The property is disposed of under the trust terms as amended and becomes part of the trust principal unless the will provides otherwise (§ 732.513(3), (5)).

Does a pour-over will avoid probate?+−

No. A will is ineffective to prove title to, or the right to possession of, the testator's property until it is admitted to probate (§ 733.103(1), Fla. Stat. (2026)). Property passing under the will goes through probate before it reaches the trustee. Property in the trust is administered by the trustee in accordance with the trust terms (§ 736.0801).

Is a pour-over will valid if I change the trust later?+−

Yes. The devise is not invalid because the trust is amendable or revocable, or because it was amended in part after the will or a codicil was signed (§ 732.513(2)(a)-(b), Fla. Stat. (2026)). The property is disposed of under the trust terms as previously or subsequently amended (§ 732.513(3)). An entire revocation of the trust by a writing before the testator's death invalidates the devise (§ 732.513(4)).

How many witnesses do the documents in the package need?+−

The will, the revocable trust, the health care surrogate designation and the living will each need two witnesses, and the power of attorney needs two subscribing witnesses plus a notary acknowledgment. A will needs at least two attesting witnesses (§ 732.502(1)(b)-(c), Fla. Stat. (2026)). The testamentary aspects of a revocable trust need will formalities (§ 736.0403(2)(b)). A power of attorney must be signed by the principal and two subscribing witnesses and acknowledged by the principal before a notary public or as § 695.03 provides (§ 709.2105(2)). A health care surrogate designation needs two subscribing adult witnesses, and the surrogate may not witness (§ 765.202(1)-(2)). A living will needs two subscribing witnesses, one neither a spouse nor a blood relative (§ 765.302(1)).

Can a beneficiary or an interested person witness the will?+−

Yes for the will. A will or codicil, or any part of either, is not invalid because an interested witness signed it (§ 732.504(2), Fla. Stat. (2026)). Any person competent to be a witness may act (§ 732.504(1)). The health care surrogate cannot witness the designation, and at least one witness to it must be neither the principal's spouse nor a blood relative (§ 765.202(2)).

Do spouses each need their own documents?+−

Each spouse signs the instruments that dispose of that spouse's property: a will needs the testator's signature at the end (§ 732.502(1)(a), Fla. Stat. (2026)). A revocable trust funded by more than one settlor can be revoked or amended by each settlor as to the portion attributable to that settlor's contribution, except for community property, which either spouse may revoke but only both may amend (§ 736.0602(2)(a)-(b)). Trust provisions and will provisions that affect a former spouse are void on dissolution of marriage, subject to exceptions (§ 736.1105(2), § 732.507(2)).

Does the power of attorney let the agent change my trust?+−

Only if the principal initialed or signed next to that authority. An agent may create an inter vivos trust, or amend, modify, revoke or terminate a trust, only if the principal signed or initialed next to each enumerated authority (§ 709.2202(1)(a)-(b), Fla. Stat. (2026)). For amending, modifying, revoking or terminating, the trust instrument must also explicitly provide for action by the settlor's agent (§ 709.2202(1)(b)). A power of attorney witnessed remotely by a witness not physically present cannot grant these authorities (§ 709.2202(6)). A power of attorney terminates when the principal dies (§ 709.2109(1)(a)).

What makes a power of attorney durable in Florida?+−

The words "This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes," or similar words showing that intent (§ 709.2104, Fla. Stat. (2026)). A power of attorney that is not durable terminates when the principal becomes incapacitated (§ 709.2109(1)(b)). If a proceeding to determine incapacity begins, the agent's authority is suspended until the petition is dismissed or the court authorizes the agent, with an exception for a parent, spouse, child or grandchild agent unless a verified motion is also filed (§ 709.2109(3)).

What is a preneed guardian declaration?+−

It is a written declaration by a competent adult naming the guardian to serve if the declarant becomes incapacitated (§ 744.3045(1), Fla. Stat. (2026)). It must reasonably identify the declarant and the preneed guardian and be signed by the declarant before at least two attesting witnesses present at the same time (§ 744.3045(2)). Producing it in an incapacity proceeding creates a rebuttable presumption that the named person is entitled to serve, and the court is not bound to appoint a person it finds unqualified (§ 744.3045(4)). The preneed guardian petitions for confirmation within 20 days after assuming duties (§ 744.3045(7)).

How do I name a guardian for my minor children?+−

A court appoints a guardian for a minor, without an incapacity adjudication, on petition of a parent, sibling, next of kin or other interested person (§ 744.3021(1), Fla. Stat. (2026)). A court may also appoint a standby guardian of a minor on petition of the natural guardians (§ 744.304(1)). The parents jointly are the natural guardians during minority, and the surviving parent remains the sole natural guardian if one parent dies (§ 744.301(1)).

Do retirement accounts and life insurance follow the will or the trust?+−

Death benefits payable to a trustee are not deemed part of the estate unless paid to a personal representative (§ 733.808(4), Fla. Stat. (2026)). Death benefits of life insurance, annuities and benefit plans may be made payable to the trustee under a trust in existence at the death of the insured or participant (§ 733.808(1), Fla. Stat. (2026)). A devise to a trustee can be valid even if the only trust property is the expectancy of receiving such death benefits (§ 732.513(2)(c)). A designation of a former spouse is void as of a dissolution that occurred before death for the assets listed in § 732.703(3), subject to § 732.703(4) (§ 732.703(2)).

How often should the documents be updated?+−

Statutes tie consequences to events: marriage, birth and adoption do not revoke a will, and the omitted spouse or child may take under § 732.301 or § 732.302 (§ 732.507(1), Fla. Stat. (2026)). Dissolution of marriage voids will provisions that affect the former spouse (§ 732.507(2)), and a revocable trust likewise (§ 736.1105(2)). A will is revoked by a later inconsistent will or codicil, or by a later writing with will formalities declaring revocation (§ 732.505), and by burning, tearing, canceling, defacing, obliterating or destroying it with intent to revoke (§ 732.506).

In short

The package joins five documents under separate Florida rules. The pour-over will reaches property left in the owner's name only after probate (§ 733.103(1), § 732.513(1)), and the trust governs only property transferred to the trustee (§ 736.0401).

Last checked: October 19, 2026

Sources

Each source below was read on the date shown. Statute links open the 2026 edition on the Florida Senate site. The Florida Probate Rules edition is the one the Florida Bar posted on October 15, 2026.

§ 732.502, Fla. Stat. (2026), Execution of wills. The Florida Senate. Plain-English page on this site.
§ 732.503, Fla. Stat. (2026), Self-proof of will. The Florida Senate. Plain-English page on this site.
§ 732.507, Fla. Stat. (2026), Effect of subsequent marriage, birth, adoption, or dissolution of marriage. The Florida Senate. Plain-English page on this site.
§ 732.513, Fla. Stat. (2026), Devises to trustee. The Florida Senate. Plain-English page on this site.
§ 732.901, Fla. Stat. (2026), Production of wills. The Florida Senate. Plain-English page on this site.
§ 733.103, Fla. Stat. (2026), Effect of probate. The Florida Senate.
§ 733.808, Fla. Stat. (2026), Death benefits; disposition of proceeds. The Florida Senate.
§ 735.201, Fla. Stat. (2026), Summary administration; nature of proceedings. The Florida Senate. Plain-English page on this site.
Ch. 2026-57, §§ 7, 14, Laws of Fla., CS/HB 1337, amending s. 735.201(2) and setting the effective date. Florida Department of State.
§ 732.4015, Fla. Stat. (2026), Devise of homestead. The Florida Senate. Plain-English page on this site.
§ 732.2035, Fla. Stat. (2026), Property entering into elective estate. The Florida Senate. Plain-English page on this site.
§ 736.0401, Fla. Stat. (2026), Methods of creating trust. The Florida Senate.
§ 736.0402, Fla. Stat. (2026), Requirements for creation. The Florida Senate. Plain-English page on this site.
§ 736.0403, Fla. Stat. (2026), Trusts created in other jurisdictions; formalities required for revocable trusts. The Florida Senate. Plain-English page on this site.
§ 736.0601, Fla. Stat. (2026), Capacity of settlor of revocable trust. The Florida Senate.
§ 736.0602, Fla. Stat. (2026), Revocation or amendment of revocable trust. The Florida Senate. Plain-English page on this site.
§ 736.0801, Fla. Stat. (2026), Duty to administer trust. The Florida Senate.
§ 736.1105, Fla. Stat. (2026), Effect of subsequent marriage, birth, adoption, or dissolution of marriage. The Florida Senate.
§ 689.01, Fla. Stat. (2026), How real estate conveyed. The Florida Senate.
§ 695.03, Fla. Stat. (2026), Acknowledgment and proof; validation of certain acknowledgments; legalization or authentication before foreign officials. The Florida Senate.
§ 709.2105, Fla. Stat. (2026), Qualifications of agent; execution of power of attorney. The Florida Senate. Plain-English page on this site.
§ 709.2202, Fla. Stat. (2026), Authority that requires separate signed enumeration. The Florida Senate. Plain-English page on this site.
§ 765.202, Fla. Stat. (2026), Designation of a health care surrogate. The Florida Senate. Plain-English page on this site.
§ 765.302, Fla. Stat. (2026), Procedure for making a living will; notice to physician. The Florida Senate. Plain-English page on this site.
Art. X, § 4, Fla. Const., Homestead; exemptions. The Florida Senate.
IRS, What's New: Estate and Gift Tax, Basic exclusion amount for year of death (2026: $15,000,000). Internal Revenue Service.
Fla. Dep't of Revenue, Florida Estate Tax, Florida estate tax. Florida Department of Revenue.
§ 732.501, Fla. Stat. (2026), Who may make a will. The Florida Senate. Plain-English page on this site.
§ 732.504, Fla. Stat. (2026), Who may witness. The Florida Senate. Plain-English page on this site.
§ 732.505, Fla. Stat. (2026), Revocation by writing. The Florida Senate.
§ 732.506, Fla. Stat. (2026), Revocation by act. The Florida Senate.
§ 732.301, Fla. Stat. (2026), Pretermitted spouse. The Florida Senate. Plain-English page on this site.
§ 732.302, Fla. Stat. (2026), Pretermitted children. The Florida Senate. Plain-English page on this site.
§ 732.703, Fla. Stat. (2026), Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death. The Florida Senate. Plain-English page on this site.
§ 733.301, Fla. Stat. (2026), Preference in appointment of personal representative. The Florida Senate. Plain-English page on this site.
§ 733.302, Fla. Stat. (2026), Who may be appointed personal representative. The Florida Senate.
§ 733.707, Fla. Stat. (2026), Order of payment of expenses and obligations. The Florida Senate. Plain-English page on this site.
§ 709.2104, Fla. Stat. (2026), Durable power of attorney. The Florida Senate. Plain-English page on this site.
§ 709.2109, Fla. Stat. (2026), Termination or suspension of power of attorney or agent's authority. The Florida Senate.
§ 744.301, Fla. Stat. (2026), Natural guardians. The Florida Senate. Plain-English page on this site.
§ 744.3021, Fla. Stat. (2026), Guardians of minors. The Florida Senate.
§ 744.304, Fla. Stat. (2026), Standby guardianship. The Florida Senate.
§ 744.3045, Fla. Stat. (2026), Preneed guardian. The Florida Senate. Plain-English page on this site.
§ 740.003, Fla. Stat. (2026), User direction for disclosure of digital assets. The Florida Senate. Plain-English page on this site.
§ 740.006, Fla. Stat. (2026), Disclosure of content of electronic communications of deceased user. The Florida Senate. Plain-English page on this site.
26 U.S.C. § 401(a)(9), Required distributions, including the 10-year rule in subparagraph (H) and eligible designated beneficiaries in subparagraph (E). Cornell Law School, Legal Information Institute.

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