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Owners of Florida real estate and accounts who want trust property passed on under private terms

Revocable Living Trust

How a Florida revocable living trust is created, funded, changed and administered after death, with each rule cited to the Florida Statutes.

A revocable living trust is a trust the settlor can change or cancel during life. In Florida the settlor may revoke or amend a trust unless its terms expressly say it is irrevocable, except for a trust created under an instrument executed before the Trust Code's effective date (§ 736.0602(1), Fla. Stat. (2026)). A trust is created by transferring property to a trustee, or by the owner declaring that the owner holds identifiable property as trustee (§ 736.0401, Fla. Stat. (2026)). The settlor can serve as the trustee.

Requirements. A trust exists only if the settlor has capacity, the settlor indicates intent to create it, the trust has a definite beneficiary (or is a charitable, animal-care or noncharitable-purpose trust), the trustee has duties to perform, and the same person is not the sole trustee and sole beneficiary (§ 736.0402(1), Fla. Stat. (2026)). The capacity needed to create, amend or revoke a revocable trust is the capacity needed to make a will (§ 736.0601, Fla. Stat. (2026)).

Signing. The testamentary aspects of a revocable trust signed by a Florida domiciliary are invalid unless the settlor signs with the formalities for executing a will (§ 736.0403(2)(b), Fla. Stat. (2026)). That means a signature at the end and at least two attesting witnesses who sign in the presence of the settlor and of each other (§ 732.502(1), Fla. Stat. (2026)). "Testamentary aspects" are the provisions that dispose of trust property at or after the settlor's death, other than to the settlor's estate. A trust of land must be manifested and proved by a writing signed by the party creating it (§ 689.05, Fla. Stat. (2026)).

What the trust avoids. A will does not prove title to a testator's property until it is admitted to probate (§ 733.103(1), Fla. Stat. (2026)). A trustee administers trust property under the trust terms (§ 736.0801, Fla. Stat. (2026)), and a trust is not subject to continuing court supervision unless a court orders it (§ 736.0201(3), Fla. Stat. (2026)). This applies only to property that has been transferred to the trustee. Property left in the owner's name stays outside the trust, and a pour-over will can leave it to the trustee (§ 732.513(1), Fla. Stat. (2026)) after the will is admitted to probate.

What the trust does not do. Revocable trust property is subject to the settlor's creditors during the settlor's life, to the extent the property would not otherwise be exempt if the settlor owned it directly (§ 736.0505(1)(a), Fla. Stat. (2026)). After death, the trust is liable for the expenses and obligations of the settlor's estate to the extent the estate is insufficient (§ 733.707(3), Fla. Stat. (2026)). Property in the trust is included in the gross estate for federal estate tax when the decedent held the power to alter, amend, revoke or terminate (26 U.S.C. § 2038(a)(1)).

The fit

Who qualifies

  • Anyone with the capacity to make a will. The capacity to create, amend or revoke a revocable trust is the same as for a will (§ 736.0601, Fla. Stat. (2026)).
  • Owners of Florida real estate. A deed to the trustee moves title into the trust. The deed is signed before two subscribing witnesses (§ 689.01(1), Fla. Stat. (2026)). To be recorded, its execution must be acknowledged or proved by a subscribing witness (§ 695.03, Fla. Stat. (2026)).
  • Parents of minor children. The trust names a successor trustee. A vacancy is filled first by the person the trust names, then by unanimous agreement of the qualified beneficiaries, then by a court (§ 736.0704(3), Fla. Stat. (2026)).
  • People planning for incapacity. A trustee adjudicated incapacitated creates a vacancy that the named successor fills (§ 736.0704(1)(f), (3)(a)). An agent under a power of attorney can exercise the settlor's powers over the trust only as § 709.2202 authorizes (§ 736.0602(5)).
  • People who want trust property outside probate. A custodian still deposits a will with the clerk within 10 days after learning of the death (§ 732.901(1), Fla. Stat. (2026)). The trustee also files a notice of trust on the settlor's death (§ 736.05055(1)) stating the settlor's name, date of death, trust title and date, and the trustee's name and address (§ 736.05055(2)). Qualified beneficiaries receive a copy of the instrument on reasonable request (§ 736.0813(1)(c)).
  • Owners of estates above the summary administration limit. Summary administration is available only when the estate subject to administration, less exempt property, does not exceed $150,000, or the decedent has been dead more than 2 years (§ 735.201(2), Fla. Stat. (2026)). Ch. 2026-57, § 7, Laws of Fla., changed the figure from $75,000, and § 14 sets the act's effective date as July 1, 2026.
The work

What the documents cover

The process

How it works, step by step

  1. 01
    Choose the trustee, successors and beneficiaries

    The trust needs a settlor with capacity, a trustee with duties, and a definite beneficiary or a permitted purpose. One person cannot be the sole trustee and the sole beneficiary (§ 736.0402(1)). A vacancy in the trusteeship is filled by the person the trust names, then by unanimous agreement of the qualified beneficiaries, then by a court (§ 736.0704(3)).

  2. 02
    Set how the trust can be changed

    The settlor may revoke or amend by substantial compliance with the method in the trust terms. If the terms give no method, a later will or codicil that expressly refers to the trust or specifically devises the property works, as does any other method showing clear and convincing evidence of intent (§ 736.0602(3)). Rules differ when more than one settlor funds the trust (§ 736.0602(2)).

  3. 03
    Sign before two witnesses

    The settlor signs at the end, and at least two attesting witnesses sign in the presence of the settlor and of each other (§ 732.502(1), applied to trusts by § 736.0403(2)(b)). Self-proof by an affidavit before an officer authorized to administer oaths is optional (§ 732.503(1)).

  4. 04
    Fund the trust

    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). Chapter 689 allows the witnesses to take part through audio-video communication technology (§ 689.01(2)(a)). Death benefits of life insurance, annuities and benefit plans may be made payable to the trustee by designation (§ 733.808(1)).

  5. 05
    Review the trust after life changes

    Marriage, birth and adoption do not revoke a revocable trust (§ 736.1105(1)). Dissolution of marriage voids trust provisions that affect the spouse unless an exception applies (§ 736.1105(2)); the rule applies to settlors who die on or after June 29, 2021 (§ 736.1105(3)).

The pitfalls

Common problems

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

  • An unfunded trust. A trust holds property transferred to the trustee or declared held in trust (§ 736.0401, Fla. Stat. (2026)). Property left in the owner's name is not trust property. A pour-over will can direct it to the trustee (§ 732.513(1)), but a will does not prove title until it is admitted to probate (§ 733.103(1)).
  • No successor trustee. A trusteeship with no remaining trustee must be filled (§ 736.0704(2), Fla. Stat. (2026)). Without a named successor, the qualified beneficiaries must agree on one or a court appoints one (§ 736.0704(3)).
  • Missing witnesses. Without will formalities, the testamentary aspects of a revocable trust signed by a Florida domiciliary are invalid (§ 736.0403(2)(b), Fla. Stat. (2026)).
  • Homestead. The limit on devising homestead applies to homestead held in a revocable trust: the grantor is treated as the owner, and a disposition by trust is a devise (§ 732.4015(2), Fla. Stat. (2026); Art. X, § 4(c), Fla. Const.).
  • Beneficiary designations that bypass the trust. Death benefits are payable to the trustee only if the designation names the trustee. If no trustee claims the proceeds within 6 months after death, payment goes to the personal representative of the person who made the designation, unless an agreement with the insurer provides otherwise (§ 733.808(1), (3), Fla. Stat. (2026)).
  • Treating the trust as a shield from creditors. Revocable trust property is reachable by the settlor's creditors to the extent it is not otherwise exempt (§ 736.0505(1)(a), Fla. Stat. (2026)), and by the estate's expenses and obligations when the estate is insufficient (§ 733.707(3)).
  • Agent powers left out. An agent under a power of attorney may create a trust only if the principal initialed that authority, and may amend or revoke a trust only if the principal initialed it and the trust instrument explicitly allows it (§ 709.2202(1)(a)-(b), Fla. Stat. (2026)).
The FAQ

Frequently asked questions

Does a revocable living trust avoid probate in Florida?+−
Only for property transferred to the trustee. A will does not prove title to a testator's property until it is admitted to probate (§ 733.103(1), Fla. Stat. (2026)). A trust is not subject to continuing court supervision unless a court orders it (§ 736.0201(3)). Property left in the owner's name still passes through the estate, and a pour-over will can leave it to the trustee (§ 732.513(1)).
What are the steps to create a revocable trust in Florida?+−
(1) The settlor has the capacity required to make a will (§ 736.0601, Fla. Stat. (2026)). (2) The settlor indicates intent, the trust has a definite beneficiary, the trustee has duties, and the same person is not the sole trustee and sole beneficiary (§ 736.0402(1)). (3) The settlor transfers property to a trustee or declares that the settlor holds identifiable property as trustee (§ 736.0401). (4) A trust of land is manifested and proved by a signed writing (§ 689.05). (5) The settlor signs with will formalities, including two attesting witnesses, so the testamentary aspects are valid (§ 736.0403(2)(b), § 732.502(1)).
How many witnesses does a revocable trust need in Florida?+−
Two. The testamentary aspects of a revocable trust signed by a Florida domiciliary are invalid unless the settlor signs with the formalities for a will (§ 736.0403(2)(b), Fla. Stat. (2026)). A will needs at least two attesting witnesses who sign in the presence of the testator and of each other (§ 732.502(1)). A deed into the trust needs two subscribing witnesses (§ 689.01(1)).
Does a revocable trust have to be notarized in Florida?+−
Section 736.0403(2)(b), Fla. Stat. (2026), requires the formalities for executing a will, which are the signature at the end and two attesting witnesses (§ 732.502(1)). No notary is required for the trust's validity. Self-proof by a notarized affidavit is optional (§ 732.503(1)). To be recorded, a deed's execution must be acknowledged or proved by a subscribing witness (§ 695.03).
Can I change or revoke my revocable trust?+−
Yes, unless the terms expressly say the trust is irrevocable (§ 736.0602(1), Fla. Stat. (2026)). That rule does not apply to a trust created under an instrument executed before the Trust Code's effective date. The settlor may revoke or amend by substantial compliance with the method in the trust terms. If the terms give no method, the settlor may use a later will or codicil that expressly refers to the trust or specifically devises the property, or any other method showing clear and convincing evidence of intent (§ 736.0602(3)). An agent under a power of attorney may exercise these powers only as § 709.2202 authorizes (§ 736.0602(5)). A guardian of the property may exercise them only as § 744.441 provides (§ 736.0602(6)).
Can I be my own trustee?+−
Yes. A trust may be created by the owner's declaration that the owner holds identifiable property as trustee (§ 736.0401(2), Fla. Stat. (2026)). The same person cannot be the sole trustee and the sole beneficiary (§ 736.0402(1)(e)), so a trust with one trustee needs at least one other beneficiary, or a second trustee. A trustee's death or adjudicated incapacity creates a vacancy (§ 736.0704(1)). The person named in the trust fills it first, then the qualified beneficiaries by unanimous agreement, then a court (§ 736.0704(3)).
Can creditors reach property in a revocable trust?+−
Yes, during the settlor's life, to the extent the property would not otherwise be exempt if the settlor owned it directly (§ 736.0505(1)(a), Fla. Stat. (2026)). A homestead within the constitutional limits is exempt from forced sale, with the exceptions the constitution lists (Art. X, § 4(a), Fla. Const.). After death, revocable trust property is liable for the expenses and obligations of the settlor's estate to the extent the estate is insufficient (§ 733.707(3)). The trustee must pay amounts the personal representative certifies in writing (§ 736.05053(1)).
Can Medicaid or a nursing home take a house held in a revocable trust?+−
A nursing home is a creditor, so the creditor rules in the previous answer apply (§ 736.0505(1)(a), Fla. Stat. (2026)). Medicaid estate recovery is a claim filed against the estate in the probate proceeding (§ 409.9101(2)), and it ranks as a Class 3 claim (§ 733.707(1)(c)). The debt is not enforced if the recipient is survived by a spouse, a child under 21, or a blind or permanently and totally disabled child (§ 409.9101(6)). It is not enforced against property exempt from creditors under Florida law (§ 409.9101(7)).
Does putting my home in a trust trigger the mortgage due-on-sale clause?+−
For a loan secured by residential real property with fewer than five dwelling units, federal law bars a lender from exercising a due-on-sale clause on a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property (12 U.S.C. § 1701j-3(d)(8)).
How does a revocable trust affect the Florida homestead?+−
The limit on devising homestead applies. For that limit, the owner includes the grantor of a trust described in § 733.707(3), and a disposition by trust is a devise (§ 732.4015(2), Fla. Stat. (2026)). Homestead cannot be devised if 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.). The homestead property tax exemption goes to a person who has legal title or beneficial title in equity and makes the property a permanent residence (§ 196.031(1)(a)). The county property appraiser decides whether a parcel qualifies (Florida Department of Revenue).
What must a successor trustee do after the settlor dies?+−
Within 60 days after learning that the trust became irrevocable, the trustee gives the qualified beneficiaries notice of the trust's existence, the settlor's identity, the right to request a copy of the instrument, the right to accountings, and the fiduciary lawyer-client privilege (§ 736.0813(1)(b), Fla. Stat. (2026)). The trustee files a notice of trust with the court of the county of the settlor's domicile and the court having jurisdiction of the settlor's estate; if a probate proceeding is open, the notice is filed in it (§ 736.05055(1), (4)). The trustee pays the personal representative the amounts certified in writing for estate expenses and obligations (§ 736.05053(1)). For an irrevocable trust the trustee provides an accounting at least annually (§ 736.0813(1)(d)).
How much does a trustee get paid in Florida?+−
If the trust terms do not specify compensation, the trustee is entitled to compensation that is reasonable under the circumstances (§ 736.0708(1), Fla. Stat. (2026)). If the terms specify it, the trustee is paid as specified, but a court may allow more or less when the duties differ substantially from those contemplated or the specified amount is unreasonably low or high (§ 736.0708(2)).
What duties does a trustee have?+−
A trustee must administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries (§ 736.0801, Fla. Stat. (2026)). The trustee must act solely in the interests of the beneficiaries (§ 736.0802(1)), administer as a prudent person would, with reasonable care, skill and caution (§ 736.0804), and keep qualified beneficiaries reasonably informed (§ 736.0813).
How long can someone challenge a revocable trust?+−
An action to contest the validity of a trust that was revocable at the settlor's death is barred if not commenced within the earlier of the time provided in chapter 95 or 6 months after the trustee sent the person a copy of the trust instrument and a notice of the trust's existence, the trustee's name and address, and the time allowed (§ 736.0604, Fla. Stat. (2026)). Claims by a beneficiary against a trustee for breach of trust follow separate limits (§ 736.1008).
Is property in a revocable trust subject to estate tax?+−
The gross estate includes property transferred by trust that the decedent held the power to alter, amend, revoke or terminate (26 U.S.C. § 2038(a)(1)). The IRS lists a 2026 basic exclusion amount of $15,000,000 (IRS, What's New: Estate and Gift Tax). Florida's estate tax was eliminated for people who died after December 31, 2004 (Florida Department of Revenue).
Do I need a will if I have a revocable trust?+−
A pour-over will is the usual companion. A devise to the trustee of a trust in existence when the will is made is valid even if the trust is revocable or later amended (§ 732.513(1)-(2), Fla. Stat. (2026)), and the property devised becomes part of the trust principal unless the will provides otherwise (§ 732.513(5)). The will must be admitted to probate before it proves title (§ 733.103(1)), so property that passes under the will goes through probate first.
What are the disadvantages of a trust in Florida?+−
Florida statutes do not list disadvantages. The legal consequences they set out are these. Property not transferred to the trustee is not trust property (§ 736.0401, Fla. Stat. (2026)). Creditors can reach revocable trust property to the extent it is not exempt (§ 736.0505(1)(a)). After the settlor's death the trustee owes notice, loyalty, prudence and accounting duties (§ 736.0813, § 736.0802, § 736.0804). A deed into the trust needs two subscribing witnesses and, to be recorded, an acknowledgment or proof by a subscribing witness (§ 689.01(1), § 695.03).
What should be left out of a revocable trust?+−
No Florida statute lists assets that must stay out. Property that passes by beneficiary designation can stay in that form, and death benefits of life insurance, annuities and benefit plans may be made payable to a trustee but need not be (§ 733.808(1), Fla. Stat. (2026)). Trusts that are part of retirement plans and individual retirement accounts are excluded from the will-formality rule (§ 736.0403(3)) and are not treated as revocable trusts for the estate-liability rule (§ 733.707(3)(a)). The Florida Bar pamphlet on revocable trusts (updated December 2018) states that some assets should not be transferred to a trust because income tax problems may result.
What if I move out of Florida?+−
Section 736.0403(1), Fla. Stat. (2026), states Florida's rule for trusts created elsewhere: a trust not created by will is validly created if it complies with the law of the jurisdiction where the instrument was executed or where the settlor was domiciled at creation. How another state treats a Florida trust is that state's law.
In short

A revocable living trust avoids probate only for property titled in the trustee's name. The trust stays reachable by the settlor's creditors and by the estate's expenses and obligations (§ 736.0505(1)(a), § 733.707(3)), and funding decides what passes under it.

Last checked: October 16, 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.

  1. § 736.0401, Fla. Stat. (2026), Methods of creating trust. The Florida Senate.
  2. § 736.0402, Fla. Stat. (2026), Requirements for creation. The Florida Senate. Plain-English page on this site.
  3. § 736.0403, Fla. Stat. (2026), Trusts created in other jurisdictions; formalities required for revocable trusts. The Florida Senate. Plain-English page on this site.
  4. § 736.0601, Fla. Stat. (2026), Capacity of settlor of revocable trust. The Florida Senate.
  5. § 736.0602, Fla. Stat. (2026), Revocation or amendment of revocable trust. The Florida Senate. Plain-English page on this site.
  6. § 736.0604, Fla. Stat. (2026), Limitation on action contesting validity of revocable trust. The Florida Senate.
  7. § 736.0201, Fla. Stat. (2026), Role of court in trust proceedings. The Florida Senate. Plain-English page on this site.
  8. § 736.0505, Fla. Stat. (2026), Creditors' claims against settlor. The Florida Senate. Plain-English page on this site.
  9. § 736.05053, Fla. Stat. (2026), Trustee's duty to pay expenses and obligations of settlor's estate. The Florida Senate.
  10. § 736.05055, Fla. Stat. (2026), Notice of trust. The Florida Senate. Plain-English page on this site.
  11. § 736.0704, Fla. Stat. (2026), Vacancy in trusteeship; appointment of successor. The Florida Senate. Plain-English page on this site.
  12. § 736.0708, Fla. Stat. (2026), Compensation of trustee. The Florida Senate. Plain-English page on this site.
  13. § 736.0801, Fla. Stat. (2026), Duty to administer trust. The Florida Senate.
  14. § 736.0802, Fla. Stat. (2026), Duty of loyalty. The Florida Senate. Plain-English page on this site.
  15. § 736.0804, Fla. Stat. (2026), Prudent administration. The Florida Senate.
  16. § 736.0813, Fla. Stat. (2026), Duty to inform and account. The Florida Senate. Plain-English page on this site.
  17. § 736.1008, Fla. Stat. (2026), Limitations on proceedings against trustees. The Florida Senate. Plain-English page on this site.
  18. § 736.1105, Fla. Stat. (2026), Effect of subsequent marriage, birth, adoption, or dissolution of marriage. The Florida Senate.
  19. § 733.103, Fla. Stat. (2026), Effect of probate. The Florida Senate.
  20. § 733.707, Fla. Stat. (2026), Order of payment of expenses and obligations. The Florida Senate. Plain-English page on this site.
  21. § 733.808, Fla. Stat. (2026), Death benefits; disposition of proceeds. The Florida Senate.
  22. § 732.4015, Fla. Stat. (2026), Devise of homestead. The Florida Senate. Plain-English page on this site.
  23. § 732.502, Fla. Stat. (2026), Execution of wills. The Florida Senate. Plain-English page on this site.
  24. § 732.503, Fla. Stat. (2026), Self-proof of will. The Florida Senate. Plain-English page on this site.
  25. § 732.513, Fla. Stat. (2026), Devises to trustee. The Florida Senate. Plain-English page on this site.
  26. § 732.901, Fla. Stat. (2026), Production of wills. The Florida Senate. Plain-English page on this site.
  27. § 735.201, Fla. Stat. (2026), Summary administration; nature of proceedings. The Florida Senate. Plain-English page on this site.
  28. 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.
  29. § 689.01, Fla. Stat. (2026), How real estate conveyed. The Florida Senate.
  30. § 689.05, Fla. Stat. (2026), How declarations of trust proved. The Florida Senate.
  31. § 695.03, Fla. Stat. (2026), Acknowledgment and proof; validation of certain acknowledgments; legalization or authentication before foreign officials. The Florida Senate.
  32. § 709.2202, Fla. Stat. (2026), Authority that requires separate signed enumeration. The Florida Senate. Plain-English page on this site.
  33. § 409.9101, Fla. Stat. (2026), Recovery for payments made on behalf of Medicaid-eligible persons. The Florida Senate.
  34. § 196.031, Fla. Stat. (2026), Exemption of homesteads. The Florida Senate. Plain-English page on this site.
  35. Art. X, § 4, Fla. Const., Homestead; exemptions. The Florida Senate.
  36. 26 U.S.C. § 2038, Revocable transfers. Cornell Law School, Legal Information Institute.
  37. 12 U.S.C. § 1701j-3(d)(8), Preemption of due-on-sale prohibitions; exemption of specified transfers. Cornell Law School, Legal Information Institute.
  38. IRS, What's New: Estate and Gift Tax, Basic exclusion amount for year of death (2026: $15,000,000). Internal Revenue Service.
  39. Fla. Dep't of Revenue, Florida Estate Tax, Florida estate tax. Florida Department of Revenue.
  40. Fla. Dep't of Revenue, Property Tax Exemptions, Homestead property tax exemption and assessment limitation. Florida Department of Revenue.
  41. The Revocable Trust in Florida (updated December 2018), Consumer pamphlet, further reading only. The Florida Bar.

General information, not legal advice. The official text controls. Disclaimer.

Rachel Brannan Schadt, Esq.
Your attorney
Rachel Brannan Schadt, Esq.

Florida probate and estate attorney. Florida Bar #127500, admitted 2017. Third-generation Florida attorney and Sarasota native. Florida State University; Western Michigan University Cooley Law School. Admitted to the U.S. District Courts for the Northern, Middle and Southern Districts of Florida.

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