A will does not, by itself, keep your family out of probate. That catches a lot of people off guard. A last will and testament is an important legal document that explains how you want your probate assets distributed and nominates the person you trust to handle your estate. But a will generally does not avoid probate for assets that are titled in your name alone and do not pass automatically to someone else.
This is something I explain to families all the time. Having a will is important, but depending on what you own and how your assets are titled, a living trust may offer benefits that a will alone cannot. Understanding how your assets are titled is an important part of Florida estate planning. The right combination of a will, trust, and incapacity documents can help make sure your plan works the way you intend.
What Happens When an Estate Goes Through Probate?
Probate is the court process for administering assets that do not automatically pass to someone else when a person dies. Depending on the estate, the process may involve identifying and gathering estate assets, notifying creditors, resolving valid claims, and distributing the remaining property to beneficiaries.
If you leave a valid will, it tells the court who you want to receive your probate assets and who you nominate to serve as your personal representative. If you die without a will, Florida's intestacy statutes determine who inherits. Either way, assets that are subject to probate generally must go through the probate process before they can be distributed.
Not everything you own necessarily goes through probate. Property held in a properly funded living trust, assets held jointly with rights of survivorship, and accounts with valid beneficiary designations may pass outside probate. How your deeds, bank accounts, and other assets are titled can make a significant difference.
Florida has more than one type of probate administration. Some estates may qualify for Summary Administration. Under Florida Statute § 735.201, this process is generally available when the value of the entire estate subject to administration in Florida, after deducting property exempt from creditors' claims, does not exceed $150,000, or when the decedent has been deceased for more than two years. For an estate with a will, the will must not direct formal administration. Other statutory requirements also apply.
Estates that do not qualify for Summary Administration, or for which formal administration is otherwise appropriate, generally proceed through Formal Administration. This involves court filings, notice to creditors, publication of the notice as required by Florida law, and ongoing responsibilities for the personal representative. How long probate takes depends on the estate. An uncomplicated estate may be resolved in a few months, while matters involving real estate, creditor issues, disputes, or other complications can take considerably longer. You can learn more about Florida probate administration and what the process may involve.
Then there's the question of privacy. Many filings in a Florida probate case are public records. These may include the will, petitions for administration, court orders, and letters of administration. However, not every document is open to public inspection. Under Florida Statute § 733.604, estate inventories and accountings filed with the court are confidential and exempt from public records disclosure, subject to the statute's exceptions. Florida law also restricts county recorders from placing images or copies of probate court files, records, or papers on publicly available websites for general public display under Florida Statute § 28.2221(5)(a). That online restriction does not make the underlying probate records confidential. Public records may generally still be requested from or inspected through the Clerk of Court, subject to applicable exemptions and access rules.
For families who would rather keep the details of their estate and how their assets are distributed out of public records, this is often an important consideration.
Probate also comes with administrative costs, personal representative compensation, and attorney fees. Florida Statute § 733.6171 provides a schedule of attorney fees that is presumed reasonable for ordinary services in a formal administration. However, Florida does not require attorneys to charge those scheduled amounts. The fee is negotiable, and an attorney who intends to charge based on the statutory schedule must provide the written disclosures required by the statute. Personal representative compensation is addressed separately under Florida Statute § 733.617.
How a Living Trust Can Make a Difference
A Florida revocable living trust is created during your lifetime. In most cases, you serve as your own initial trustee and continue managing the assets held in the trust, including buying, selling, and handling property, subject to the terms of the trust. You can generally amend or revoke the trust while you have the legal capacity to do so.
You also name a successor trustee and provide instructions for managing and distributing trust property if you become unable to manage it yourself or when you pass away.
Choosing that person is an important decision. I discuss some of the qualities to consider in choosing the right successor trustee.
This is where a living trust can make a difference. Assets properly transferred into your trust generally do not need to go through ordinary probate when you die. Your successor trustee can take responsibility for those trust assets and manage or distribute them according to your instructions without first having to be appointed by a probate court, subject to the terms of the trust and the requirements for the successor trustee to act.
This can make things easier for your family at a time when they're already dealing with a lot. It also generally keeps the trust agreement and its distribution instructions out of the public probate file, although disputes or other court proceedings involving a trust can create circumstances in which some trust information becomes part of a court record.
A Trust Can Help During Your Lifetime, Too
A living trust can also help if you become unable to manage your finances.
If an illness or injury leaves you unable to handle your financial affairs, your successor trustee may manage the assets held in your trust according to its terms, once the requirements for the successor trustee to act have been satisfied. For financial matters and assets outside the trust, a properly executed Durable Power of Attorney may authorize your chosen agent to act on your behalf, within the powers granted in the document. Having both documents in place can help your family manage your affairs and may reduce the need for a court-appointed guardian. It does not, however, guarantee that a guardianship proceeding will never be necessary.
Note: A living trust is one part of an estate plan. A Durable Power of Attorney gives your chosen agent authority to handle financial matters within the powers granted in the document. A Designation of Health Care Surrogate names someone to make health care decisions when you cannot, and a Living Will states your wishes about certain end-of-life medical care.
It's also important to understand what a revocable trust does not do. Creating a revocable trust for yourself does not, by itself, protect your assets from your personal creditors during your lifetime. Under Florida Statute § 736.0505, property in a revocable trust remains subject to the claims of the settlor's creditors to the extent that the property would not otherwise be exempt by law if owned directly by the settlor.
Creating the Trust Is Only the Beginning
One thing I always want clients to understand is that signing a trust is not the final step. The trust needs to be funded, which means key assets must actually be transferred into it or otherwise coordinated with it for the trust to work as intended.
Drafting a trust without funding it is like buying a safe and leaving your valuables sitting on the counter. Funding can involve deeding real estate into the trust, changing ownership of certain bank accounts, and reviewing beneficiary designations to make sure they work with the rest of the estate plan.
Something I see happen often is a family taking the time to set up a trust but missing a major asset, such as forgetting to retitle a house or opening a new account years later in an individual name. If an asset is not transferred to the trust and does not otherwise pass outside probate, it may still need to go through probate.
Not every asset should be handled the same way. Retirement accounts, life insurance policies, Florida homestead property, and jointly held accounts each have their own legal and tax considerations. For example, retirement accounts are generally coordinated through beneficiary designations rather than simply retitled in the name of a revocable trust. Real estate, especially Florida homestead property, also deserves careful review before ownership is changed. These decisions should be considered together so that one part of the plan does not create an unintended problem somewhere else.
Taking the time to review how your assets are titled and making sure the trust is properly funded can help prevent problems later. It's a step that deserves just as much attention as preparing the trust itself.
Is a Living Trust Right for Your Family?
A living trust is not necessarily the right choice for every family. A plan built around a will may be appropriate for some individuals. Others may benefit from a revocable living trust, especially families who own real estate, have minor children, value financial privacy, or want a plan for managing trust assets if they become unable to handle their affairs.
When weighing your options, look beyond the initial cost of preparing documents and focus on what you want the plan to accomplish. Who will handle your affairs if you cannot? How will minor children receive and manage their inheritance? Would your family need to go through probate to transfer your home? Would you prefer to keep the details of your estate out of public records?
Thinking through these questions can help clarify whether a will, a trust, or a combination of planning documents makes the most sense for your family.
I want my clients to walk away knowing that their plan actually works for their family. That means understanding what they own, who will be responsible for handling things, and how their loved ones will be provided for. The documents matter, but making sure everything works together is what makes a plan valuable.
Florida Legal References
- Florida Statute § 735.201 — Summary Administration
- Florida Statute § 733.604 — Confidentiality of inventories and accountings
- Florida Statute § 28.2221(5)(a) — Restriction on online display of certain court records
- Florida Statute § 733.6171 — Compensation of attorney for personal representative
- Florida Statute § 733.617 — Compensation of personal representative
- Florida Statute § 736.0505 — Creditors' claims against settlor
- Florida Court Clerks & Comptrollers — Probate Records
Published April 16, 2026 | Last reviewed: October 2, 2026.
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If you're deciding whether a will or a living trust makes the most sense for your family, let's talk. During a Peace of Mind Planning Session, we'll discuss your family, review your assets, and talk through your options. You'll leave with a clearer understanding of what you may need and the next steps to consider.
This article is for general informational purposes only and is not legal advice. Reading this article does not create an attorney-client relationship. Florida law and individual circumstances can affect how these rules apply. Consult an attorney about your particular situation.
