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Miami Dade
Broward
A trust is a tool, not a status symbol, and plenty of people who are sold one do not need it. Plenty of others have one sitting in a drawer that will not work, because it was signed the wrong way or because nothing was ever put into it.
Our attorneys draft wills and both revocable and irrevocable trusts, move assets into them properly, advise trustees who have just been handed the job, and act for beneficiaries who think a trust is being mishandled. We work in English and Spanish, from offices in Miami, North Miami, Hollywood and Tallahassee.
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These get used interchangeably in conversation and they do quite different things. The short version:
| What it does | What it does not do | |
|---|---|---|
| Last will and testament | Directs who receives property you own at death and names the person who administers your estate | Does not avoid probate, and does nothing at all while you are alive |
| Revocable living trust | Holds assets you transfer into it, lets a successor trustee take over if you lose capacity, and passes those assets on at death without probate | Does not shield assets from your own creditors, does not save income tax, and does nothing with assets you never transferred into it |
| Irrevocable trust | Moves assets out of your control for a defined purpose — creditor protection, benefits planning, tax planning, providing for someone who cannot manage money | Cannot be freely undone later, which is the point and also the risk |
Most Florida plans that use a trust use a revocable one, with a short will alongside it to catch anything that was never transferred in. Whether that is right for you depends on what you own, how it is titled and who depends on you. Our estate planning page covers the rest of the plan — powers of attorney, health care documents and the Florida homestead rules.
Even with a properly funded trust, most Florida plans keep a will alongside it. It catches whatever never made it into the trust — the account opened last year, the car, the thing nobody thought about — and directs it where the trust says it should go. That kind of will is usually called a pour-over will.
The will is also where you name the person who will administer your estate, and Florida limits who that can be if they live out of state. A nonresident may serve only if they are an adopted child or adoptive parent of the decedent, a relative by lineal consanguinity, a spouse, sibling, uncle, aunt, nephew or niece, or the spouse of someone otherwise qualified (Fla. Stat. § 733.304). Naming an out-of-state friend is a plan that fails at the courthouse.
Wills have the same strict signing rules as the testamentary parts of a trust: the testator signs at the end, in the presence of at least two attesting witnesses, who sign in the presence of the testator and of each other (Fla. Stat. § 732.502(1)). A handwritten will is not valid in Florida as a holographic will, even if the state you wrote it in recognized one.
Our estate planning page covers the rest of the picture — Florida homestead, the spouse’s elective share, powers of attorney and health care documents.
This is the rule that invalidates trusts bought online or brought here from another state. In most states a trust needs only a notary. In Florida, if you were domiciled here when you signed it, the part of the trust that disposes of your property at death has to be executed with the same formalities as a will — which means two attesting witnesses, not just a notary.
“The testamentary aspects of a revocable trust, executed by a settlor who is a domiciliary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state.”Fla. Stat. § 736.0403(2)(b)
The consequence is not that the trust is awkward. It is that the dispositive provisions can be invalid, and the assets pass as though the trust never said anything — which is usually the opposite of what the person wanted. If you signed a trust somewhere else and have since moved to Florida, that is a short review and worth doing before it matters.
This is the most common failure we are asked to fix, and it has nothing to do with the drafting. A trust only controls what has actually been transferred into it. A signed trust document sitting next to a deed still in your own name does not avoid probate on that house.
Funding usually means some combination of:
Homestead needs its own thought. Florida restricts how a homestead may be devised where the owner is survived by a spouse or a minor child, and that restriction reaches homestead held in a revocable trust — putting the house in the trust does not route around it. There are also Florida homestead tax exemption and portability questions that come up when a home is transferred, so this is a step to take advice on rather than a form to download.
Trusts are marketed on two promises that do not hold up in Florida, and it is better to hear this before you pay for one.
It is not creditor protection. Where the probate estate is insufficient to pay them, a revocable trust is liable for the expenses of administration and the obligations of the settlor's estate.
“Any portion of a trust with respect to which a decedent who is the grantor has at the decedent’s death a right of revocation … is liable for the expenses of the administration and obligations of the decedent’s estate to the extent the decedent’s estate is insufficient to pay them.”Fla. Stat. § 733.707(3)
It is not completely private either. On the settlor's death the trustee has to file a notice of trust with the court in the county of the settlor's domicile and with the court having jurisdiction of the estate, giving the settlor's name and date of death, the title and date of the trust, and the trustee's name and address (Fla. Stat. § 736.05055). The terms of the trust stay private; its existence does not.
What a revocable trust does do well is avoid probate on the assets inside it, provide for a successor trustee to step in if you lose capacity without anyone going to court, and handle out-of-state real property without a second probate in that state. Those are good reasons. They are just not the ones in the brochure.
A Florida trust is revocable unless the document expressly says it is not.
“Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust.”Fla. Stat. § 736.0602(1)
How you do it matters. Where the trust sets out its own method, the settlor revokes or amends by substantially complying with that method. Where it does not, the settlor may act by a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed under it, or by any other method showing clear and convincing evidence of intent (Fla. Stat. § 736.0602(3)).
In practice, handwritten notes in the margin and side letters are where this goes wrong. If something has changed — a marriage, a divorce, a death, a child, a property sale — amend the document properly.
Being named trustee is a job with statutory deadlines attached, and the clock starts whether or not anyone has explained that to you. A trustee must keep the qualified beneficiaries reasonably informed of the trust and its administration. Specifically (Fla. Stat. § 736.0813):
Trustees are personally exposed when these are missed, and the people most often caught out are family members who took the role as a favor and did not know it came with deadlines. If you have been handed a trust and are not sure what you owe anyone, that is a short conversation worth having early.
Act quickly. Florida gives beneficiaries a short window once a trustee has adequately disclosed a matter in a trust disclosure document.
“[A] beneficiary is barred from bringing an action against a trustee for breach of trust with respect to a matter that was adequately disclosed in a trust disclosure document unless a proceeding to assert the claim is commenced within 6 months after receipt.”Fla. Stat. § 736.1008(2)
Six months is not long, and the document that starts it running often looks like a routine accounting rather than a warning. Longer outside limits apply to matters that were not adequately disclosed, but the practical point stands: if an accounting arrives and something about it does not look right, have it read straight away rather than at the end of the year.
The firm handles trust and probate disputes as well as drafting — removal of trustees, accounting challenges, competing documents and undue influence claims. Our probate and guardianship page covers that work in more detail.
We have offices in Miami, North Miami, Hollywood and Tallahassee and work in English and Spanish. A first consultation costs nothing, and it is as often used to tell someone they do not need a trust as to draft one.
If you already have a trust, bring it, along with the deed to any real property and a list of how your accounts are titled. That is usually enough to tell whether the document works and whether anything was ever moved into it.
It depends on what you own and how it is titled, not on a rule of thumb. A will does not avoid probate; a revocable trust can, but only for assets actually transferred into it. If your estate is straightforward and your accounts already pass by beneficiary designation, a will may be all you need. An attorney should tell you that plainly rather than sell you a document.
It may need re-executing. If you were domiciled in Florida when you signed it, the testamentary aspects of a revocable trust are invalid unless the instrument was executed with the formalities required for a Florida will — two attesting witnesses, not just a notary. Trusts signed while you lived elsewhere raise a different set of questions. Either way, have it reviewed after a move.
For the assets inside it, yes. For anything still titled in your own name, no. This is why funding matters more than drafting — an unfunded trust is a document that does nothing. Most plans pair the trust with a short will to catch whatever was missed.
No. Under Florida law a revocable trust is liable for the expenses of administration and the obligations of the settlor's estate to the extent the probate estate is insufficient to pay them. Creditor protection, where it is available at all, involves different tools and has to be set up long before a claim appears.
Often, but it needs care. Florida restricts how homestead may be devised where the owner is survived by a spouse or a minor child, and that restriction applies to homestead held in a revocable trust as well. There are also homestead tax exemption and portability consequences to a transfer. This is the step to take advice on.
Within 60 days of accepting the role you must notify the qualified beneficiaries, give them your name and address and tell them about the fiduciary lawyer-client privilege. Within 60 days of learning the trust has become irrevocable — usually on the settlor's death — you must tell them the trust exists, identify the settlor and tell them they can request the trust instrument and receive accountings. Irrevocable trusts then require an accounting at least annually.
Possibly six months. A beneficiary is barred from suing a trustee for breach of trust over a matter that was adequately disclosed in a trust disclosure document unless the proceeding is commenced within six months of receiving it. Longer outside limits apply to matters that were not adequately disclosed. If an accounting has arrived and something looks wrong, do not wait.
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This page is general information about Florida law, not legal advice, and reading it does not create an attorney-client relationship. Statutes change and how they apply depends on your circumstances. Speak with an attorney about your own situation.