In Florida, a will is a document that directs who receives your property after death but must pass through probate court to take effect, while a revocable living trust holds your assets during your lifetime and distributes them after death without probate. For most retirees and seasonal residents in Miami, the practical difference comes down to one question: do you want your family to go through the Florida probate process, or avoid it? Neither tool is automatically “better”—the right choice depends on what you own, where you own it, and how complicated your family is.
I’ve sat across the table from a lot of clients who walked in convinced they needed a trust because a neighbor at their condo association said so, and from just as many who insisted a simple will was “all anyone really needs.” The honest answer is that both groups are sometimes right. Let’s walk through how these documents actually behave under Florida law so you can decide with clear eyes.
What a Florida Will Actually Does
A last will and testament is governed by Chapter 732 of the Florida Statutes. To be valid in Florida, your will must be signed at the end by you (the testator) in the presence of two witnesses, who must also sign in your presence and in the presence of each other. Florida recognizes “self-proving” wills under section 732.503, where you and your witnesses sign an affidavit before a notary—this spares your witnesses from having to be tracked down and deposed years later.
Here’s the part people miss: a will does nothing until you die, and even then it doesn’t move a single asset on its own. It’s a set of instructions to a probate judge. Your named personal representative (Florida’s term for an executor) files the will with the circuit court, the court issues letters of administration, and only then can your representative gather assets, pay creditors, and distribute what’s left.
The probate reality in Miami-Dade
Probate in Florida is not the catastrophe some seminars make it out to be, but it is a real process with real friction:
- Time. A formal administration in Miami-Dade County typically runs anywhere from six months to over a year, longer if there’s a dispute or a messy creditor situation.
- Cost. Florida law (section 733.6171) sets presumptively reasonable attorney’s fees as a percentage of the estate—roughly 3% on the first $1 million. Add court costs and personal representative fees on top.
- Publicity. Probate is a public court record. Anyone can pull your file and see what you owned and who got it.
- The creditor period. Florida requires a notice-to-creditors period (generally three months from publication) before the estate can close.
For modest estates, Florida offers summary administration—available when the probate estate is under $75,000 or the decedent has been dead more than two years. It’s faster and cheaper, but it doesn’t fit everyone.
What a Florida Revocable Living Trust Does
A revocable living trust is an entity you create during your lifetime, usually naming yourself as both the grantor and the initial trustee. You move assets into it—retitling your home, brokerage accounts, and bank accounts in the name of the trust. Because the trust technically owns those assets, there’s nothing for the probate court to administer when you die. Your named successor trustee simply steps in and distributes everything according to your instructions. Florida trusts are governed by the Florida Trust Code, Chapter 736 of the Florida Statutes.
“Revocable” is the key word. As long as you’re alive and competent, you can amend it, restructure it, or tear it up entirely. You keep total control. You still file the same tax return; the IRS treats a revocable trust as you for income tax purposes during your life, so there’s no separate tax burden while you’re around.
The advantages people actually feel
- Probate avoidance. Trust assets pass outside court entirely. Your successor trustee can often distribute within weeks, not months.
- Privacy. A trust is not filed publicly. Your family’s business stays your family’s business.
- Incapacity planning. This is the underrated benefit. If you have a stroke or develop dementia, your successor trustee manages trust assets immediately—no guardianship proceeding, no court oversight. A will offers nothing here, because a will only speaks at death.
- Out-of-state property. If you own real estate in another state, a trust avoids a second “ancillary” probate up north.
Why This Matters More for Snowbirds and Seasonal Residents
If you split your year between Miami and a home in New York, New Jersey, Michigan, or Ohio, the trust conversation changes shape. Property in two states means, at death, potentially two probate proceedings—one in Florida and an ancillary one wherever your northern home sits. That’s two sets of attorneys, two court systems, two timelines. A revocable trust that holds both properties collapses that into a single, court-free administration.
Florida domicile is its own planning issue. Establishing Florida as your legal home affects whether your estate gets pulled into a state with its own estate or inheritance tax. Florida has no state estate tax and no state income tax, which is a big reason so many retirees make the move official. A well-drafted Florida estate plan reinforces your domicile claim. If you’re managing property and family ties across state lines, it’s worth coordinating with counsel in both jurisdictions—our colleagues handle complex multi-state estate work, including for clients who keep a foothold up north.
A note on long-term care and asset protection
Be careful with one common misconception: a revocable living trust does not protect your assets from creditors or from Medicaid spend-down for nursing home care. Because you retain full control, those assets are still considered yours. Clients who are worried about long-term care costs sometimes need a different, irrevocable structure—and for those with disabled family members or income-eligibility concerns, specialized vehicles like a can preserve benefits in ways a standard revocable trust never will. Don’t assume one document solves every problem.
Florida’s Homestead Wrinkle
No Florida estate planning discussion is complete without homestead. Your Florida homestead enjoys powerful constitutional protections, but those same protections create restrictions on how you can leave the home. If you’re married or have minor children, Article X, Section 4 of the Florida Constitution limits your ability to devise the homestead freely—your spouse and minor children have rights that override your will or trust.
Putting a homestead into a revocable trust is common and usually fine, but it must be done carefully to preserve your homestead tax exemption and creditor protection. This is exactly the kind of detail where a DIY online trust goes wrong. I’ve cleaned up more than a few of those.
Cost: The Honest Comparison
People fixate on the upfront price, and a will is genuinely cheaper to draft than a trust. But the comparison isn’t fair unless you count the back end. A will costs less today and more later—at probate. A trust costs more today and, if funded properly, saves your family the probate expense entirely. The math usually favors a trust once you own a home plus a few accounts, and it favors a trust strongly when you own property in more than one state.
The catch—and it’s a big one—is funding. A trust only works for the assets actually titled into it. An unfunded trust is an expensive paperweight; the assets you forgot to retitle will still go through probate. This is the single most common failure I see. Drafting the trust is half the job; moving the assets is the other half.
Which One Fits Your Family?
Use this as a rough guide, then talk to an attorney about your specifics:
- A will may be enough if: your estate is modest, your assets already pass by beneficiary designation (retirement accounts, life insurance) or joint ownership, your affairs are simple, and you don’t own out-of-state property.
- A revocable trust likely fits better if: you own real estate—especially in two states—you value privacy, you want seamless incapacity planning, you have a blended family, or you simply want to spare your loved ones the probate process.
- Most people need both. Even with a trust, you should have a “pour-over will” that catches any asset you forgot to fund into the trust and directs it there. The two documents work as a team, alongside a durable power of attorney and a health care directive.
Whatever route you take, the documents have to be drafted to Florida standards and updated as your life changes. A move, a marriage, a grandchild, a new property—each is a reason to revisit the plan. If you’d like a clear-eyed review of what fits your situation, our Florida team handles exactly this kind of planning; you can learn more about our or read our overview of Florida wills and how the Florida probate process works. When you’re ready, reach out to schedule a consultation.
The goal isn’t to buy the fanciest document. It’s to make sure that when something happens to you, your family knows exactly what to do—and isn’t stuck in a courthouse hallway figuring it out.
Frequently Asked Questions
Does a revocable living trust avoid probate in Florida?
Yes, but only for assets actually titled in the trust’s name. A revocable living trust avoids Florida probate because the trust, not you personally, owns the assets at death, so your successor trustee can distribute them without court involvement. Any asset you forget to fund into the trust will still go through probate, which is why proper funding is essential.
Do I still need a will if I have a revocable living trust?
Yes. Even with a trust, you should have a ‘pour-over will’ that captures any asset you neglected to transfer into the trust and directs it there at death. The will and trust work together, alongside a durable power of attorney and a health care directive, to form a complete Florida estate plan.
Does a Florida revocable trust protect my assets from creditors or Medicaid?
No. Because you keep full control of a revocable trust, the assets are still legally yours and remain exposed to creditors and to Medicaid spend-down for long-term care. Asset protection generally requires a properly structured irrevocable trust, which should be discussed with an attorney based on your goals and timeline.
I'm a snowbird with homes in two states. Why does that change my plan?
Owning real estate in two states can trigger two separate probate proceedings at death—one in Florida and an ancillary probate in your other state. A revocable living trust that holds both properties consolidates everything into a single, court-free administration and helps reinforce your Florida domicile, which matters for state tax purposes.
How much does probate cost in Florida?
Florida Statute 733.6171 sets presumptively reasonable attorney’s fees as a percentage of the estate—roughly 3% on the first $1 million—plus court costs and personal representative fees. Smaller estates under $75,000, or those where the person died more than two years ago, may qualify for faster, cheaper summary administration.
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For more on our Florida practice, see our overview of estate planning in Boca Raton. Morgan Legal Group's affiliated New York office also handles .
