Do You Need a Will If You Have a Trust in Florida?

1. Why Do You Need a Will If You Have a Trust?

You need a will because a trust controls only the property you move into it. A revocable living trust is a set of instructions for property titled in the trust’s name, such as a home deeded to the trust or a brokerage account retitled to it. Property still in your own name at death is outside those instructions, and Florida law sends it wherever your will says, or, with no will, to your heirs under the statute.

The will does three jobs the trust cannot.

1. The will catches what was left out and sends it into the trust, so the trust’s terms govern everything in the end.
2. The will names your personal representative, the person the probate court appoints first to collect the estate, sign for it and bring or settle claims. Without a will, Florida gives first preference to a surviving spouse and then to the person chosen by a majority of the heirs.
3. The will is where the court looks for your choice of guardian for minor children, covered in section 3.

A will and a trust do not compete. Each governs different property, and our guide on whether a will overrides a trust covers what happens when the two conflict. For the choice between them in the first place, see our comparison of a will and a living trust in Florida.

2. What Is a Pour-Over Will?

A pour-over will is a short will that leaves everything you own at death to the trustee of your living trust. Florida law expressly allows a will to leave property to a trust that exists in writing when the will is signed, or that is signed at the same time, as long as the will identifies the trust. The gift stays valid even though the trust is revocable and even if you amend the trust after signing the will, and the property is distributed under the trust as amended.

The pour-over will is therefore a safety net. You can amend the trust for years without re-signing the will, and whatever the will catches still follows the latest version of the trust. Our guide to the Florida pour-over will covers how it is signed and what it can and cannot move, including the homestead.

The will must be signed with Florida’s formalities, at the end, in front of two witnesses who sign in front of you and each other. A self-proving affidavit before a notary lets the court accept it later without calling the witnesses.

3. Who Names a Guardian for Your Children If You Only Have a Trust?

A trust cannot name a guardian for your children. The trust can hold and manage the money for them, but the person who raises a minor child after both parents die is appointed by a court, and Florida’s statute tells the court to consider a guardian designated in a will in which the child is a beneficiary. The nomination therefore belongs in the will, and the separate declaration described next removes any doubt about it.

Florida adds a stronger tool. Parents can sign a separate written declaration naming a preneed guardian for a minor child, witnessed by two people and filed with the clerk of court. When the last surviving parent dies or becomes incapacitated, that declaration creates a rebuttable presumption that the named person is entitled to serve, and the court must appoint a qualified preneed guardian unless the appointment is contrary to the child’s best interests. We sign both documents together so the will and the declaration name the same person.

While one parent survives, that parent remains the child’s natural guardian, even after remarrying. A natural guardian can handle up to $15,000 for a child without a court appointment, and larger sums need a guardianship of the property. A trust for the children avoids that step, because the trustee, not a guardian, manages what the children inherit. Our guide to the testamentary trust covers a trust for children written into the will itself.

4. What Assets End Up Outside the Trust?

Assets end up outside a trust in two ways, because they were never moved in or because they arrived later. Almost every family has some of each.

• Accounts opened after the trust was signed, such as a new savings account or certificate of deposit opened in your own name.
• Property you meant to move and did not, often a second home, a timeshare, or shares held on paper certificates.
• Money that arrives after death, including tax refunds, final paychecks, security deposits and insurance refunds.
• An inheritance you received from a parent or sibling and left in the account it came in.
• A car, jewelry and household goods, which families rarely title to a trust.
• A claim or lawsuit, such as a wrongful death or malpractice recovery, which belongs to the estate and needs a personal representative to pursue it.

Retirement accounts and life insurance pass by beneficiary designation and skip both the will and the trust, so the designation form needs its own review. Our guides on dying without funding your trust, how to fund a trust in Florida and what assets should not be in a revocable trust cover the retitling itself.

5. What Happens If You Have a Trust but No Will in Florida?

If you have a trust but no will, every asset outside the trust passes under Florida’s rules for dying without a will, called intestacy. Those rules send the property to your spouse and descendants in shares set by statute, then to parents, siblings and more distant relatives, whether or not they are named in your trust. A surviving spouse takes the whole intestate estate only if all your descendants are also the spouse’s descendants and the spouse has no other descendants, and otherwise takes half. Our guide to Florida intestate succession has the full chart.

A trust that leaves everything to a favorite charity, a stepchild or a friend does not reach the assets outside it. Those assets go to relatives by blood or marriage, and the person your trust names as successor trustee has no authority over them until a court appoints a personal representative.

A later marriage creates a second problem. When a person marries after signing a will and the will makes no provision for the new spouse, Florida gives the surviving spouse the share of the probate estate the spouse would take with no will at all, unless a prenuptial or postnuptial agreement provides otherwise or the will shows an intention to leave the spouse out. The pretermitted spouse rule reaches the assets outside the trust, which is why funding the trust matters and why a will should be reviewed after any marriage. Separately, a surviving spouse’s elective share reaches property in a revocable trust too.

6. Does a Pour-Over Will Go Through Probate?

A pour-over will goes through probate for whatever it catches, because a will moves property only through a court. The size of the probate depends on what was left out. Florida’s simpler procedure, summary administration, covers an estate of $150,000 or less after property exempt from creditors, or an estate of someone who died more than 2 years before, and the figure rose from $75,000 on July 1, 2026. Where the estate has no real estate and the personal property does not exceed the funeral and final illness expenses, no administration may be needed at all. Our guide to summary administration covers the procedure.

The trust also carries some of the estate’s bills. A revocable trust is liable for the estate’s expenses and creditor claims to the extent the probate estate cannot pay them, and after the grantor’s death the trustee files a notice of trust with the court, covered in our page on the Florida notice of trust and the rule on paying the estate’s bills. The successor trustee’s steps after a death are in our guides to trust administration and the successor trustee.

What Does a Will With a Trust Cost?

The Complete Trust Plan is a flat fee from $3,200, and $4,500 for a couple, and includes the revocable trust, the pour-over will with a guardian nomination, the durable power of attorney, the health-care documents and a deed funding the trust. A simple will on its own is a flat fee from $299. Adding a pour-over will and a preneed guardian declaration to a trust you already have is a flat fee quoted at consult. Probating assets left outside a trust is a flat fee from $2,500 for summary administration and from $3,500 for formal administration. Recording and other government costs are additional and passed through at cost. Advertised fees are honored for 90 days from the posted date.

Frequently Asked Questions

Common Situations

The widow with a new CD. A widow funds her trust in 2019 and opens a $90,000 certificate of deposit in her own name in 2024. Her pour-over will sends it to the trust after a summary administration, and her children inherit it on the trust’s terms rather than in the fixed shares Florida’s rules would give.

The young parents with a trust from a website. A couple sign a living trust online that holds their house and savings for their two children. Neither signs a will. Their trust can pay for the children, but nothing names who raises them, so the family would have to agree on a guardian in court. The parents add pour-over wills and a preneed guardian declaration naming the same sister.

Sources of Law

• Fla. Stat. §732.513(1)-(3) (devises to a trustee valid though the trust is revocable or later amended; property passes under the trust as amended); §732.502 (execution of wills); §733.301(1) (preference in appointment of personal representative).
• Fla. Stat. §732.101(1) (property not disposed of by will passes to heirs); §732.102 (spouse’s intestate share); §732.103 (share of other heirs); §732.301 (pretermitted spouse), flsenate.gov.
• Fla. Stat. §744.301(1)-(2) (surviving parent as natural guardian; $15,000 limit without appointment); §744.3046(1)-(4) (preneed guardian for a minor; rebuttable presumption); §744.312(1),(3)(c) (court appoints a qualified preneed guardian unless contrary to the ward’s best interests; considers a guardian designated in a will in which the ward is a beneficiary).
• Fla. Stat. §735.201(2) (summary administration, $150,000 after exempt property or death more than 2 years before), as amended by ch. 2026-57, Laws of Fla., effective July 1, 2026; §735.301 (disposition without administration); §733.707(3) (revocable trust liable for estate expenses and claims when the estate is insufficient); §§736.05053, 736.05055 (trustee’s duty to pay; notice of trust).
• Case retold below: Hoffman v. Kohns, 385 So. 2d 1064 (Fla. 2d DCA 1980). Opinion read in full; retrieved September 30, 2026.

The Trust That Held and the Money That Did Not

I read trust instruments that were never funded every week, and a Florida appeals decision from 1980 shows better than any of them why the will behind a trust matters.

In January 1969 a man past 70 signed a revocable trust naming himself and his niece as co-trustees, moved everything he then owned into it, and signed a pour-over will leaving a few gifts and sending the rest to the trust. The trust would pass to the niece and her children. He inherited more money in 1972 and 1973 and wanted it in the trust, but by October 1974 he was hospitalized with senility, and he lived afterward with round-the-clock housekeepers. In late August 1975 a 55-year-old woman was hired as his housekeeper. On September 9 he re-signed the pour-over will and a trust amendment his lawyer of ten years had prepared the year before. On September 22 she drove him to Wauchula and married him before a notary. Four days later her own lawyer drew a new will leaving her everything, on October 3 he signed a one-paragraph revocation of the 1969 trust, and over the next three months nearly all his securities were moved into her name or into joint names. He died in September 1976 at 84. The trial court threw out the new will for undue influence but upheld the marriage and the revocation, and then gave her the entire estate as a spouse the will had not provided for. The appeals court agreed about the will and the marriage, reversed on the trust, found the revocation was part of the same undue influence, and ordered the assets returned to the trust. She still took everything outside the trust, because his last valid will was signed before the marriage, made no provision for her, and he left no descendants.

My reading of that case is that the trust did its job and the will could not. What was in the trust went back to the niece’s family, and what had been left outside it went to the housekeeper. In reviewing Florida cases on unfunded trusts and pour-over wills, I have a few take-home points.

The first is funding. The money he inherited after 1969 never made it into the trust, and every dollar left outside passed under the probate rules instead of the trust. Retitling new accounts to the trust as they are opened is the protection a will cannot supply.

The second is marriage. A will signed before a marriage gives a new spouse an intestate share of the probate estate unless the will or a marital agreement addresses the spouse. Avoid letting a marriage pass without a review of the will, and put a line in every will stating how any future spouse is treated.

The third is the agreement. Florida’s statute now honors a prenuptial or postnuptial agreement that provides for or waives the spouse’s share, which is the document that would have protected his plan.

An owner can close each of these gaps while healthy. One limit is worth stating plainly. The appeals court sent the case back to sort out which assets returned to the trust, so the opinion does not say how much each side finally received. A contest over undue influence is litigation, which we quote per matter.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case described above is a decision of a Florida court rather than a matter handled by this firm. Past results do not guarantee a similar outcome.

Updated on September 30, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law, not legal advice, and no attorney-client relationship is created. Do not send confidential information until we have agreed to represent you.