By Raymond Ferrer, Esq., Ferrer Counsel, Miami
Published October 28, 2026
Quick answer: A will is a document that says who receives your property and who should care for your minor children after you die, and it generally has to go through probate court to take effect. A revocable living trust holds your property during your lifetime, lets a successor trustee step in if you become unable to manage your affairs, and can pass property to your loved ones without probate, but only for property that has actually been placed in the trust. Many Florida families use both.
What is a will?
A will (sometimes called a “last will and testament”) is a written document that says who should receive your property when you die. It also lets you name a personal representative, the person who manages your estate, and, if you have minor children, the person you want to raise them.
Under Section 732.501, Florida Statutes, any person of sound mind who is 18 or older, or an emancipated minor, can make a will. Under Section 732.502, a Florida will must be in writing, signed by you at the end, and signed in front of at least two witnesses, who must sign in your presence and in the presence of each other.
A will does nothing while you are alive. It only speaks after your death.
What is a trust?
A trust is an arrangement where one person (the trustee) holds and manages property for the benefit of others (the beneficiaries). The most common trust in estate planning is a revocable living trust. You create it during your lifetime, and you usually serve as your own trustee, so you keep control of your property.
Under Section 736.0602, unless the trust document expressly says it is irrevocable, you can change or revoke your trust. And under Section 736.0603, while the trust is revocable, the trustee’s duties are owed only to you.
Florida has a special signing rule for these trusts. Under Section 736.0403, if you live in Florida when you sign a revocable trust, the parts that control what happens to your property after your death are invalid unless the trust is signed with the same formalities as a will. In practice, that means two witnesses.
What is the main difference between a will and a trust?
The biggest differences come down to when each document works and whether a court is involved:
- A will works only after death, and it generally has to be admitted to probate before it can be used to transfer your property.
- A revocable living trust works during your life and after your death. Property that is held in the trust can be managed by a successor trustee if you are incapacitated and can pass to your beneficiaries without probate.
Does a will avoid probate in Florida?
No. A will is a set of instructions for the probate court, not a way around it. Under Section 733.103, until a will is admitted to probate, it is not effective to prove title to, or the right to possess, the property of the person who died.
Probate is the court-supervised process of paying debts and distributing property. As part of it, creditors generally have 3 months after the first publication of the notice to creditors to file their claims (Section 733.702). Probate is not always difficult, but it involves court filings and time.
Keep in mind that some property passes outside probate whether you have a will or not, such as accounts with a named beneficiary and property owned jointly with a right of survivorship.
Does a trust avoid probate?
It can, but only for property that is actually in the trust. Signing a trust is the first step. The second step is funding it: retitling your home, bank accounts, and investment accounts into the name of the trust, or naming the trust as a beneficiary where appropriate. Property left in your own name at death generally still goes through probate.
A trust also does not let you escape your debts. Under Section 733.707(3), a revocable trust can be liable for the expenses and obligations of your estate if your probate estate is not enough to pay them.
What is a pour-over will?
Most people with a living trust also sign a short “pour-over” will. It says that anything you did not get into your trust during your lifetime should be added to the trust at your death. Section 732.513 allows a will to leave property to the trustee of a trust, even if the trust can be amended or revoked.
A pour-over will is a safety net. Property passing under it may still need to go through probate first, which is why funding the trust during your lifetime matters.
Which is better if I become incapacitated?
A will does not help if you are alive but unable to manage your affairs because of an accident or illness. A revocable living trust can: the trust document typically names a successor trustee who takes over managing trust property if you can no longer do so.
That said, a trust only covers property held in the trust. Most plans also include a durable power of attorney for other financial matters and a health care surrogate designation for medical decisions.
Can a trust name a guardian for my children?
No. A trust can hold and manage money for your children, but it is not the place to name who will raise them. That choice goes in your will, or in a separate written preneed guardian declaration.
Under Section 744.312, Florida courts must consider any person designated as guardian in a will in which the child is a beneficiary. Under Section 744.3046, parents may also name a preneed guardian for a minor child in a written declaration signed in front of two witnesses and filed with the clerk of court. This is one reason parents of young children need a will even if they have a trust.
Is a will or a trust more private?
A trust is usually more private. Under Section 732.901, whoever has your original will must deposit it with the clerk of court within 10 days after learning of your death. Once a will is filed and probated, it generally becomes part of the court file, which can usually be viewed by the public.
A trust document is generally not filed with the court. However, after the person who created a revocable trust dies, Section 736.05055 requires the trustee to file a short “notice of trust” with the court. That notice includes basic information, such as the name of the trust and the trustee, but not the full terms of the trust.
A quick caution about Florida homestead
Florida has special rules for your home. Under Article X, Section 4 of the Florida Constitution and Section 732.4015, if you are survived by a spouse or a minor child, your homestead generally cannot be left to whomever you choose, except that it can go to your spouse if there is no minor child. Section 732.4015 applies these limits to homestead held in a revocable trust as well. Putting your home in a trust does not by itself get around these rules, so homestead should be planned carefully.
Does Florida have an estate tax?
Florida does not currently impose its own separate estate or inheritance tax on residents. The Florida Constitution (Article VII, Section 5) limits any state estate tax to the amount allowed as a credit against federal estate tax, and Florida’s tax under Section 198.02 is tied to that federal credit. Federal estate tax rules are separate and can apply to larger estates. Tax law changes, so this should be reviewed with your advisors as part of your plan.
Will vs. revocable living trust at a glance
| Will | Revocable living trust | |
|---|---|---|
| When it takes effect | Only at death | As soon as it is signed and funded, during life and after death |
| Probate | Generally must go through probate | Property held in the trust can pass without probate |
| Privacy | Generally becomes part of the public court file once probated | Generally not filed with the court; a short notice of trust is filed after death |
| Cost and effort | Usually simpler to prepare; costs and time come later, in probate | Usually more work up front, including funding; can reduce court involvement later |
| Incapacity planning | Does not help while you are alive | A successor trustee can manage trust property |
| Guardian for minor children | Yes, you can name one | No; use a will or preneed guardian declaration |
| Funding required | No | Yes; property must be retitled into the trust |
| Signing rules in Florida | Two witnesses (Section 732.502) | Same formalities as a will for after-death provisions (Section 736.0403) |
Which one do I need?
There is no one answer for every family. In general terms:
- A will-based plan may be enough for some people with simpler finances, especially when most accounts already have named beneficiaries.
- A revocable living trust is often considered by people who own real estate (especially in more than one state), want more privacy, want a plan for incapacity, have a blended family, or want to manage how and when children receive an inheritance.
- Both together is common: a trust to hold and manage property, and a pour-over will to catch anything left out and to name a guardian for minor children.
The right choice depends on your family, your property, and your goals.
A simple checklist to decide between a will and a trust
- List your main assets: your home, other real estate, bank and investment accounts, retirement accounts, life insurance, and any business interests
- Note which accounts already have a named beneficiary or joint owner
- Write down who you would want to raise your children, and a backup
- Think about who could manage your finances if you could not
- Consider whether privacy and avoiding probate matter to your family
- Schedule a consultation to review your options
Frequently Asked Questions
Is a living trust better than a will in Florida?
Not always. A trust can help avoid probate for property held in it and plan for incapacity, but it takes more work up front and must be funded. A will is simpler but generally requires probate. Many families use both.
Do I still need a will if I have a trust?
Usually, yes. A pour-over will catches property that was not placed in the trust, and a will is where you name a guardian for minor children.
Does a trust have to be signed with witnesses in Florida?
If you live in Florida, the parts of a revocable trust that control what happens to your property after your death must be signed with the same formalities as a will, which means two witnesses.
Can I change my revocable trust later?
Yes. Unless the trust document says it is irrevocable, Florida law allows you to amend or revoke your trust.
Does putting my house in a trust avoid Florida homestead rules?
No. If you are survived by a spouse or minor child, Florida’s homestead restrictions can still apply to a home held in a revocable trust.
Talk With Ferrer Counsel About Your Plan
Choosing between a will and a trust is easier when you understand how each would work for your family. Ferrer Counsel helps families in Miami-Dade and Broward Counties put wills, trusts, powers of attorney, and health care documents in place. Se habla español.
To schedule a consultation, call 305.423.0775 or visit our Contact page.
Related reading:
- What Happens If You Die Without a Will in Florida?
- Why Do People Delay Getting Their Estate Plan Done?
- Estate Planning at Ferrer Counsel
- Frequently Asked Questions
- About Raymond A. Ferrer
This article is general information only and is not legal advice. Reading it does not create an attorney-client relationship. Laws change, and every situation is different, so please speak with a lawyer about your specific circumstances.