How a Florida Revocable Living Trust Keeps Your Family Out of Probate

What Is a Revocable Living Trust in Florida?

A revocable living trust is a written agreement that holds property you transfer into it while you are alive. You create the trust, you serve as the trustee who manages it, and you name yourself as the beneficiary during your lifetime. You also name a successor trustee to step in if you become incapacitated or when you die. The trust is revocable because you can change it or cancel it whenever you want.

The word "living" means you create it now, not through a will at your death. The trust takes effect the day you sign it and fund it. Florida law requires that the testamentary aspects of a revocable trust be executed with the formalities required for the execution of a will. The testamentary aspects are the provisions that dispose of trust property on or after your death other than to your own estate. In practical terms, you sign the trust in the presence of two subscribing witnesses (witnesses who also sign the document).

A revocable trust avoids probate on the assets you put into it. Probate is the court process that transfers property from a person who has died. The trust also provides incapacity management because your successor trustee can step in without anyone going to court for a guardianship. The trust keeps the dispositive plan private because the terms of the trust are not filed with any court during your life.

A revocable trust does not protect assets from your creditors during your lifetime. Florida law says the property of a revocable trust is subject to the claims of the settlor's creditors during the settlor's lifetime. A revocable trust does not save estate taxes by itself because the trust assets are in your estate. A revocable trust does not help with Medicaid eligibility because non-exempt assets in the trust are countable. And a revocable trust does nothing at all if you never put assets into it.

How Does a Living Trust Keep Property Out of Probate?

A revocable living trust keeps property out of probate because the property is not in your name when you die. You transfer the property to the trust during your lifetime, so the title runs to the trustee. When you die, the trustee holds legal title to the property, and the trust terms say who receives it next. No court needs to be involved because the property is not part of the decedent's estate that is the subject of administration.

Florida law defines estate as the property of a decedent that is the subject of administration. A personal representative takes possession or control of the decedent's property through probate. Property that is titled in the name of the trust is not in the decedent's name, so the personal representative does not administer it. The trust may still pay estate debts if the probate estate is insufficient, but the trust property passes under its own terms.

The practical difference matters in time and cost. Property in a revocable trust passes according to the trust terms once the successor trustee is ready to act. The trustee still files a notice of trust with the court, provides accountings to beneficiaries, and holds distributions until the creditor period closes. The trust property stays out of the probate process.

A living trust also keeps the property out of the public record. A will becomes a public document when it is filed with the probate court. A trust does not get filed during your lifetime, so the terms of your plan remain private. After your death, the trustee files a notice of trust with the court of the county of your domicile and, if a probate case is open, with the court handling the estate. The notice contains only basic information about the trust.

The key point is that probate avoidance depends entirely on what you put into the trust. If you sign a trust and never transfer anything into it, the trust owns nothing. When you die, the assets that are still in your name will go through probate regardless of the trust. The trust avoids probate for assets titled in it and only for those assets.

What Goes Into a Revocable Trust, and How Do You Fund It?

A revocable trust controls only the assets you actually transfer into it. Funding the trust is the most important step after signing the document. A trust that is never funded means your family goes through probate anyway because the trust owns nothing.

Real property goes into a trust by deed. You sign a deed that transfers the property from yourself to yourself as trustee of the trust. The deed names the trust by its title and date. If the property is your Florida homestead and you are married, your spouse joins you on the funding deed (spousal joinder) because Florida law requires that. The deed should recite the trustee powers under Florida law. After recording, you give the property appraiser a copy so the homestead exemption continues without interruption.

Bank accounts and investment accounts go into a trust by retitling. You contact the institution and ask to change the account title to your name as Trustee of the Trust dated the date it was signed. The institution may ask for a certification of trust, which is a summary document that confirms the trust exists, names the trustee, and lists the trustee's powers without disclosing who inherits. Florida law authorizes the certification of trust, and an institution may rely on it.

Retirement accounts and life insurance policies pass by beneficiary designation, not by trust title. You do not name the trust as beneficiary of a retirement account unless you have a specific reason to do so. Instead, you coordinate the beneficiary designations with your overall plan so that all of the pieces work together.

The trust document may have a schedule listing the assets, but that schedule alone does not transfer anything. The schedule is a reference. Real property needs a recorded deed. Accounts need retitling at the institution.

A Complete Trust Plan includes one funding deed that moves your Florida homestead into the trust. Recording costs are additional and passed through at cost. Each additional funding deed beyond the one included is $199 plus recording. If you own property in another state, a separate flat fee is quoted at the consult. Funding instructions and help retitling accounts are part of the plan.

What Happens to Property You Never Put in the Trust?

Property you never put in the trust goes through probate. The trust cannot distribute what it does not hold. If you sign a revocable trust but never deed your house into it, the house is still in your name when you die. Probate will be required to transfer that property.

A pour-over will catches assets that were not funded into the trust. A pour-over will says the residue of your estate pours into your revocable trust. Any probate assets are distributed according to the trust terms, so your entire plan stays in one place. The pour-over will is part of a coordinated estate plan.

The pour-over will does not avoid probate. Assets that pour over still go through court because they were in your name at death. The will directs where they end up after probate, and that destination is the trust. The trust then distributes them according to your instructions.

A Complete Trust Plan includes a pour-over will, along with the trust, a durable power of attorney, designation of health care surrogate, living will, and HIPAA authorization. The plan includes one funding deed for your Florida homestead, funding instructions, and help retitling accounts. The trust plan also includes coordination of your beneficiary designations with the trust terms.

Unfunded trusts are a serious problem. After a parent dies, an adult child discovers the house was never deeded into the trust. The trust document exists, but the trust owns nothing. The fix at that point is probate with the pour-over will. The better approach is to fund the trust when it is created.

Do Accounts Held as Tenants by the Entirety Need to Go in the Trust?

A deposit account held by a married couple usually passes automatically to the survivor without probate. Florida law presumes that a deposit account in the names of two people who are husband and wife is a tenancy by the entirety unless specified otherwise in writing. When one spouse dies, the survivor keeps the full account by operation of law, outside the probate estate entirely.

Moving that account into a revocable trust changes the ownership from entireties to trust ownership. Some couples prefer this change because the trust controls what happens after the second death, consolidating everything in one plan. Other couples keep the entireties account outside the trust during both lifetimes, relying on the survivor right for the first death and allowing the survivor to fund the account into the trust afterward.

Neither approach is wrong. The choice depends on how the couple wants to handle the transition between their two deaths.

I walk through both options in the no-cost consult. We review which accounts pass automatically by survivor designation and which pass through the trust. The goal is a structure where every account goes exactly where you intend.

What Happens If You Become Incapacitated?

A revocable living trust lets a successor trustee step in and manage the trust property if you become unable to manage it yourself. No court petition is necessary. The trust document names who succeeds you and under what conditions, and the successor uses a certification of trust or the trust itself to show banks and title companies that authority has shifted. The trust property continues to be invested, bills continue to be paid, and real estate can be sold or refinanced without a guardianship proceeding.

The person who holds your durable power of attorney handles the property you kept outside the trust. A power of attorney agent can also amend or revoke the trust itself when both the power of attorney and the trust expressly authorize it; the full rule is explained in the section on changing or revoking the trust.

When the trust and the power of attorney are drafted together, both documents include the matching language. A restatement of an existing trust can add the clause if it was missing, and a new power of attorney can add the grant.

The Complete Trust Plan includes a durable power of attorney drafted to work with the trust, a designation of health care surrogate, a living will and a HIPAA authorization. The documents are designed to interlock so that incapacity does not require a court to intervene.

Does a Living Trust Keep Your Plan Private?

A will becomes a public record when it is filed with the probate court. Anyone can walk into the court and read who inherited what, who served as personal representative and what the estate held. A revocable living trust avoids that exposure because the trust itself is never filed with the court during your lifetime or at your death.

After the person who created the trust dies, the trustee must file a notice of trust. The notice goes to the court of the county where the person lived and, if a probate case is open, to the court handling the estate. Florida law specifies what the notice contains. The notice gives the name of the person who created the trust (the settlor), the date of death, the title of the trust if there is one, the date of the trust and the name and address of the trustee. The beneficiaries, the assets, the dollar amounts and the terms of distribution remain private.

Privacy matters most to families who want to keep their financial affairs out of searchable court records. Privacy also matters when a family member might challenge a gift or contest a distribution.

Can Your Florida Homestead Go in a Revocable Trust?

Florida's homestead protections follow a home into a revocable trust. The property-tax exemption, the Save Our Homes cap, the protection from forced sale by creditors and the constitutional limits on who can inherit the home all continue when the home is held by the trustee. Florida law expressly extends these protections to property held in a revocable trust.

Moving a homestead into the trust requires a deed. If the owner is married, the spouse must join the deed even if the spouse is not on title. A funding deed signed by only one spouse is void as to homestead. The fix after a missed signature is a new deed with both spouses. The Complete Trust Plan includes one funding deed for the Florida homestead, with recording as an additional cost. Each additional funding deed beyond that one is a flat fee from $199 plus recording.

The homestead devise restrictions also follow the property into the trust. A married person cannot leave the homestead away from a surviving spouse unless the spouse waived that right in a valid written agreement before or during the marriage. A minor child has a similar protection, and a minor child's rights cannot be waived.

A funding deed should recite the trustee's powers under Florida law. After recording, the owner should provide a copy of the recorded deed to the property appraiser so the exemption continues without interruption.

The trust gives you full control during your lifetime. You can sell the home, refinance, change trustees or revoke the entire arrangement. You remain the beneficial owner, living in the home under the same protections that applied when you held legal title directly. Florida courts have confirmed that a person holding beneficial ownership of a home in trust can claim the homestead exemption from forced sale.

What Does a Revocable Trust Not Do?

A revocable living trust does not protect your assets from your creditors while you are alive. Florida law is direct about this point. The property of a revocable trust is subject to the claims of the settlor's creditors during the settlor's lifetime to the extent the property would not otherwise be exempt by law if owned directly by the settlor. Because you can take the property back at any time, your creditors can reach it too.

A revocable trust does not help you qualify for Medicaid. Federal law treats a revocable trust the same as if you owned the property outright. The corpus of the trust is considered resources available to you. Payments from the trust to you or for your benefit are considered your income. Any other payments from the trust are considered assets you disposed of for purposes of the transfer penalty rules. A homestead remains exempt when held in a revocable trust, the same as when owned directly.

A revocable trust may have to pay the debts and expenses of your estate when the probate estate is short. Florida law provides that any portion of a trust that the grantor could revoke at death is liable for administration expenses and the decedent's obligations to the extent the probate estate is insufficient. The trustee should hold distributions until the creditor period closes.

A revocable trust does not defeat your spouse's right to an elective share. Florida law includes in the elective estate any property you transferred that was revocable by you at death, so revocable trust property is counted. Your spouse can still claim 30 percent of the elective estate regardless of what your trust says. A prenuptial or postnuptial agreement with the proper waivers is the way to change that result.

A revocable trust does not reduce your estate taxes by itself. The assets remain in your taxable estate because you kept the power to take them back. Florida has no estate tax, and the federal exemption in 2026 is approximately $15 million per person. The inclusion in your estate is actually good for income tax purposes because it preserves a full basis step-up at death.

What Happens When the Grantor Dies?

When the person who created the trust (the grantor or settlor) dies, the trust becomes irrevocable. The successor trustee named in the trust document takes over. No court appointment is necessary, and the successor can begin managing the property immediately.

Florida law requires the trustee to file a notice of trust with the court of the county of the settlor's domicile and the court having jurisdiction of any probate estate. The notice contains the name of the settlor, the date of death, the title of the trust if any, the date of the trust, and the name and address of the trustee. Filing this notice does not make the trust terms public. The dispositive provisions, meaning who gets what, stay private.

The trustee owes duties to the qualified beneficiaries. The qualified beneficiaries are the people entitled to receive income or principal now or in the future, and those who would receive if a current interest ended. The trustee must keep them reasonably informed and provide accountings at least yearly, on termination, and on a change of trustee. Accounting duties begin once the trust becomes irrevocable.

The trust may have to cover estate debts if the probate estate is not large enough. Florida law provides that a revocable trust is liable for administration expenses and enforceable claims to the extent the decedent's probate estate is insufficient. The trustee should coordinate with the personal representative and hold distributions until the creditor period closes.

Distribution then follows the trust terms exactly as written. A graduated payout releases shares at the ages you chose. A share held for a beneficiary's lifetime stays in trust with the trustee making distributions under the standard you set.

How Do You Change or Revoke a Living Trust?

You can change or revoke your trust at any time while you have capacity. Florida law allows you to do so by the method the trust states. If the trust is silent, you may use a later will or codicil that expressly refers to the trust, or any method that shows clear and convincing intent.

An amendment works for small changes such as adding a beneficiary or adjusting the distribution schedule. For larger revisions, a restatement is better. A restatement replaces the old terms entirely while keeping the same trust name and date, so you do not have to re-title accounts or re-record deeds. A restatement also gives the successor trustee one clean document instead of a stack of amendments.

A power of attorney agent can amend your trust only if both the power of attorney and the trust itself expressly authorize it. Florida law requires the power of attorney to separately enumerate the trust-amendment authority, signed or initialed by the principal. The trust must also include a clause authorizing amendment by the settlor's agent. One without the other leaves the agent without authority.

The power of attorney must also be executed with in-person witnesses. A remotely-witnessed power of attorney does not validly grant the trust-amendment power. The remote-witness rule trips up families whose parent signed a power of attorney by video and later needs the trust changed for tax or Medicaid planning.

In a coordinated plan, the trust and the power of attorney are drafted together with matching language.

Sub-Trusts for Minors, Special Needs and Blended Families

A revocable trust becomes useful when you need more than a simple outright distribution. A minor child cannot manage property, so the trust can hold a share and release it at ages you choose. A blended family may need each spouse's assets to benefit the survivor and then pass to that spouse's children from a prior relationship.

The Complete Trust Plan is a flat fee from $3,200 for one person or $4,500 for a couple and includes a graduated payout schedule. Each share is held in a separate sub-trust and released at the ages the trust names. The design works when a beneficiary is an adult who can manage money but you want some control over timing, or when a beneficiary is a minor and will not reach the first distribution age for years.

The Protected Trust Plan is a flat fee from $4,700 for one person or $6,000 for a couple. Each share stays in trust for that beneficiary's lifetime instead of being paid out. A creditor, a divorcing spouse, or a bankruptcy trustee can reach a distribution the trustee actually makes, but not the trust itself. Families often choose this plan for a child in a high-liability profession or a child whose marriage is uncertain.

A third-party special needs trust (one funded with someone else's money) built into a plan rather than standing alone is a flat fee from $4,000. A first-party special needs trust (funded with the beneficiary's own inheritance or settlement) is a flat fee from $7,000. Each sub-trust is drafted so the beneficiary's share supplements rather than replaces public benefits. A stand-alone special needs trust is a flat fee from $4,000 for a third-party trust or from $7,000 for a first-party trust.

Is a Revocable Trust Tax-Neutral?

A revocable living trust is a grantor trust (a trust taxed to you, on your return). During your life the trust uses your Social Security number and files no separate return. All income on assets in the trust appears on your 1040, the same as if you held the assets in your own name.

At death the trust assets are included in your gross estate (the total value of everything you own for federal estate-tax purposes). Federal estate tax applies only above roughly $15 million in 2026, and Florida has no estate tax of its own. Inclusion in your gross estate is the reason your beneficiaries receive a full basis step-up under federal tax law. A beneficiary who inherits property and sells it pays capital gains only on any increase in value after your death, not on the gain that built up during your lifetime.

The trust does not save on income tax or estate tax by itself. The trust is tax-neutral, meaning it neither adds to nor subtracts from your tax position. Clients sometimes ask whether a revocable trust shelters assets from federal estate tax. A revocable trust does not do that. If you want to move assets out of your gross estate during life, you need an irrevocable structure. A revocable trust preserves the step-up and keeps your plan private, and that is what it is built to do.

How Does a Living Trust Compare With a Will or a Lady Bird Deed?

A will controls only the property that passes through your probate estate. Probate is required to transfer title when you hold property in your own name at death. A revocable trust holds title during your life, so title passes to your successor trustee and then to your beneficiaries without court involvement. A trust also lets your successor trustee manage assets if you become incapacitated. A will has no effect during your life and does nothing for incapacity planning.

Even with a trust you still need a will. A pour-over will catches any property you never transferred into the trust and pours it into the trust after probate. The poured-over assets still go through probate because they were in your name, but they join the rest of your plan once administration closes.

A lady bird deed passes your Florida homestead to your children automatically when you die. The deed can also name a trust as the remainder beneficiary. The deed avoids probate on that one property, and you keep full control during your life. For a single Florida home going to adult children with no conditions, a lady bird deed is cheaper than a trust and does the job. The Complete Trust Plan is a flat fee from $3,200, or $4,500 for a couple.

A trust is better when you own multiple assets, property in more than one state, or a home in another state. A trust is also better for families with minor children, a special-needs beneficiary, a blended family, or a plan that includes conditions on when and how beneficiaries receive their shares. A trust lets you hold back distributions until a beneficiary reaches a certain age or meets conditions you set.

What Florida Courts Have Said About Trusts and Homestead

Florida courts have held that beneficial ownership of a home through a trust preserves the constitutional homestead protection from forced sale.

In Callava v. Feinberg, a judgment creditor argued that a homeowner could not claim the homestead exemption because legal title to her home was held by a trustee. The homeowner had gone through a long dissolution case. The creditor pursued the home to collect on a judgment. The Third District Court of Appeal disagreed with the creditor. The court said, "Thus, even if Callava owns only a beneficial interest in the property, she is entitled to claim a homestead exemption to the forced sale of the property and the trial court erred in foreclosing her interest in the property." The court added, "The statute does not defeat Callava's beneficial interest in the property for purposes of homestead exemption." The decision was issued October 15, 2003, with rehearing denied January 30, 2004.

In HCA Gulf Coast Hospital v. Estate of Downing, a hospital holding a judgment for $8,856.45 plus interest claimed it could reach the homestead because title passed through a trustee. Phyllis Downing had died in July 1990. Her estate consisted of real property worth $45,000, left by her will in a spendthrift trust for her daughter, her only heir. The First District Court of Appeal affirmed that the daughter held equitable title free of the hospital's claim. The court said, "That Phyllis Downing chose to effectuate her intent through a spendthrift trust rather than a will seems to us a matter of form rather than substance." The court concluded, "Thus, the trial court correctly ruled that Donna Downing Gray may hold equitable title to the homestead property free from the claim of creditor HCA."

Florida law expressly extends homestead protections to property held in a revocable trust. The Callava and Downing decisions confirm that beneficial ownership is enough to claim the constitutional protection from forced sale.

Can You Sign a Living Trust From Home?

Florida law requires the testamentary aspects of a revocable trust to be executed with the formalities of a will. The testamentary aspects are the provisions that dispose of trust property on or after your death. The formality that matters most is two subscribing witnesses (witnesses who also sign the document). The trust must be executed by the settlor in the presence of two subscribing witnesses. Our standard practice adds a notary block, but the legal requirement is the two witnesses.

Florida permits online notarization and remote witnessing. An online notary public physically located in Florida may perform an online notarization regardless of whether the principal or any witnesses are physically located in Florida at the time. A witness who is remote from the principal must verbally confirm that he or she is a resident of and physically located within the United States or a territory of the United States at the time of witnessing.

When a revocable trust is signed with fewer than two witnesses in the physical presence of the principal, the remote-notarization service provider must ask the principal three questions before the signing proceeds. The questions ask whether the principal is under the influence of any drug or alcohol that impairs decision-making, whether the principal has any physical or mental condition or long-term disability that impairs daily activities, and whether the principal requires assistance with daily care. If any question is answered in the affirmative, the signature may only be validly witnessed by witnesses in the physical presence of the principal at the time of signing.

Signing from home is possible when you answer no to each screening question and when each remote witness is a resident of and physically located in the United States.

How to Set Up a Living Trust in Florida, Step by Step

A revocable living trust in Florida begins with a no-cost 30-minute consult. You describe your family, your property and what you want to happen. The consult is by phone or video, and you do not need documents ready before we talk.

After the consult comes the design. You choose who serves as successor trustee when you cannot. You decide how each beneficiary's share pays out, whether at once, at certain ages or over a lifetime. A blended family or a child with a disability often needs conditions the standard will cannot carry.

Once the design is complete, I draft the trust, a pour-over will, a durable power of attorney, a designation of health-care surrogate, a living will and a HIPAA authorization. The trust and the health-care documents can be signed with two subscribing witnesses and a notary by video if each remote witness is a resident of and physically located in the United States and confirms that fact. The durable power of attorney that includes trust-amendment authority must be signed with witnesses physically present.

Funding follows. The Complete Trust Plan includes one deed moving your Florida homestead into the trust (plus recording). Each additional funding deed is $199 plus recording. We record the deed with the county, notify your property appraiser so the homestead exemption continues, and provide a certification of trust for banks and brokerages. You retitle accounts to yourself as trustee, listing the trust name and date.

The last step is beneficiary designations. Retirement accounts and life insurance name individuals, not the trust, unless a see-through trust is intended. I review what you have and tell you what to change. When the trust is funded and the designations match, your plan is complete.

Common Mistakes With a Living Trust

A serious mistake is leaving the trust unfunded. A trust controls only property titled in the trustee's name. If you sign a trust and never deed your home into it, the home goes through probate anyway. A pour-over will catches what you missed, but the assets it catches still require court administration.

Another mistake is signing without two witnesses. Florida law requires will formalities for the testamentary aspects of a revocable trust (the parts that say who gets what at death). A trust signed only before a notary, with no subscribing witnesses, has invalid dispositive provisions. Every trust, every amendment and every restatement should follow the same procedure.

Married homeowners sometimes deed the home into a trust without the spouse joining the deed. Under the Florida Constitution, a married person cannot convey or mortgage homestead without the other spouse joining. A deed signed only by the owner is void as to the homestead.

Some families stack amendment after amendment until the document is difficult to read. A restatement replaces the entire trust with a clean, current version. The trust keeps its original name and date, no refunding is needed, and everyone can follow the plan.

An overlooked problem is the former spouse left as trustee or beneficiary after a divorce. Florida law removes a former spouse as beneficiary in some circumstances, but the safest course is to update the trust yourself. Name the people you want, and remove the ones you do not.

A final mistake is assuming a revocable trust protects assets from your creditors or from Medicaid. Exempt property (including homestead) keeps its exemption in a revocable trust, but the rest of the trust corpus remains reachable.

What Does a Living Trust Cost in Florida?

A revocable living trust drafted alone, without a will or funding, is a flat fee from $2,400, or $3,200 for a couple. A deed moving a property into that trust is $550 plus recording.

The Complete Trust Plan is a flat fee from $3,200, or $4,500 for a couple. The plan includes the trust, a pour-over will with a self-proving affidavit, a durable power of attorney, a designation of health-care surrogate, a living will, a HIPAA authorization, one funding deed for the Florida homestead (plus recording), funding instructions and help retitling accounts, beneficiary designations coordinated with the trust, and successor trustee instructions. Each additional funding deed beyond the one included is $199 plus recording.

The Protected Trust Plan is a flat fee from $4,700, or $6,000 for a couple. Everything in the Complete Trust Plan is included, and each share stays in trust for that beneficiary's life instead of paying out. A creditor, a divorcing spouse or a bankruptcy trustee can reach a distribution the trustee actually makes, and not the trust itself.

A third-party special needs trust built into a plan rather than standing alone adds from $4,000 to the plan. A first-party special needs trust adds from $7,000.

Government costs, including recording and certified copies, are passed through at cost. The consult is no-cost and lasts 30 minutes.

We work with clients across Florida by phone and video. See the full cost breakdown → · full pricing →

A trust is the most common way Florida families hold a home outside their own names. On the 2026 property roll, 600,542 Florida homes are held in trust, 6.11 percent of every residential parcel in the state, and 270,615 of them carry a homestead exemption. In Collier County it is nearly one home in five, and Lee County alone has 64,041 homes in a family trust. The county figures, with the land trusts counted separately, are in Florida homes held in trust by county.

Frequently Asked Questions

Common Situations

A widow in her seventies signed a trust fifteen years ago. She never deeded her condominium into the trust, and the trust sat in a drawer. When she passed away, the condominium went through probate because title was still in her name. Her daughter spent months and legal fees on a summary administration that the trust was supposed to avoid. The lesson cost time and money that a single funding deed would have prevented.

A married couple wanted to leave their home to adult children from prior marriages, each spouse's share to that spouse's own children. The wife signed a written waiver of her homestead rights during the marriage, and the husband signed one in return. Each disclosed the property subject to the waiver. The couple signed a revocable trust with a blended-family distribution. Because each spouse waived the constitutional protection, the homestead passed under the trust exactly as planned. Both sets of children received what their parents intended, and no probate was required.

Banks and brokers ask for different paperwork to retitle an account to a trust, and the trust account requirements dataset quotes 154 of them, while the beneficiary designation rules dataset covers accounts that name the trust as beneficiary instead.

Sources of Law

• Florida Trust Code, Fla. Stat. ch. 736: §736.0505 (annotated) (settlor’s creditors reach a revocable trust), §736.05055 (annotated) (notice of trust), §736.1017 (annotated) (certification of trust), §736.1109 (annotated) (homestead in trust: invalid devise passes per §732.401; power of sale does not expose it to creditors); §196.041(2) (homestead tax exemption for beneficial owners). flsenate.gov
• What the trust contains: §736.0402 (annotated) (a trust requires a definite beneficiary); §736.0403 (annotated)(2)(b) (testamentary aspects of a revocable trust signed with the formalities of a will, two witnesses under §732.502); §736.0704 (annotated)(3) (a vacancy is filled by the named successor, then by unanimous agreement of the qualified beneficiaries, then by the court); §736.0816 (annotated) (specific powers of a trustee, including sale, borrowing and mortgage, leasing, and continuing a business). Incapacity standard and incapacity distributions as drafted in the firm’s model joint revocable trust. (retrieved 2026-10-01)
• Homestead: Art. X §4, Fla. Const.; §732.7025 (spousal waiver); Engelke v. Estate of Engelke. Durable POA superpowers §709.2202. Tax: IRC §2038 (estate inclusion), §1014 (basis step-up). (retrieved 2026-06-07)
• Revocation and amendment: §736.0602 (annotated) (the trust’s own method, or a later will that refers to the trust expressly, or clear and convincing evidence of intent); provisions for a spouse void on divorce, §736.1105 (annotated)(2); reformation, §736.0415 (annotated). Cases read in full: McGee v. McGee, No. 2D2024-1447 (Fla. 2d DCA Aug. 15, 2025) (slip opinion, no reporter citation at retrieval; reformation unavailable where the trust terms already matched the settlor’s intent and the assets were never retitled); Grassfield v. Grassfield, 381 So. 3d 628 (Fla. 2d DCA 2023) (amendments delivered to only one of two trustees did not substantially comply with the trust’s amendment method). Entireties property in a trust: no statute; Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45 (Fla. 2001) and the drafting elements it implies. (retrieved 2026-09-03)

What Two Florida Trust Cases Show About Funding and Amending

The reason I draft the way I do is that I have read the transcript of what happens when it is drafted the other way. With a revocable trust the document itself is rarely the problem, and the two Florida decisions below are about what happened after two careful men signed good documents.

The calls I take about this almost always start the same way, with a family that found a trust in a drawer and assumed the trust settled everything. In one case I have reviewed, a man in Pasco County signed a revocable trust on July 22, 2014, named his wife and his daughter, among others, as the people who would inherit when he died, and moved his real estate and bank accounts into it. On October 19, 2021 he went to a different lawyer and signed a second trust that left everything to his wife alone. The second lawyer told him he had to retitle the property into the new trust and handed him a written funding guide, which said the trust would have no effect on what happened to his property unless he did. He never told that lawyer the 2014 trust existed, and he never moved a single asset. When he died, the 2021 trust owned nothing, and every account and parcel was still titled in the 2014 trust with the daughter still named in it. His widow asked the court to rewrite the 2021 trust as a restatement of the 2014 trust, the trial judge agreed after a bench trial, and on August 15, 2025 the appellate court reversed and directed that her petition be denied, because the 2021 document said exactly what he meant, and a court can correct a document that is wrong but not a transfer that was never made. The court said nobody knows why he stopped, that it may have slipped his mind or he may have changed his mind, and that the answer would not have mattered.

A Manatee County case decided in December 2023 shows the other failure, which is changing a trust the wrong way. A man who created his trust in 2003 reserved the right to amend it by a written instrument, signed, notarized, and delivered to the trustee during his lifetime, and from 2016 his son served with him as one of the trust’s two trustees. In August 2018 he signed a restatement that removed the son as trustee and made a friend his primary beneficiary. He married her that October, and in January and May 2019 he signed two amendments that gave her more and named her his successor trustee. He died in August 2019 at 92. Every one of those documents was written, signed and notarized, and not one of them was ever delivered to the son. The son sued, and the court set aside the restatement and both amendments, so the trust passed under its 2016 terms.

In reading the two decisions together, I have a few take-home points.

The first is that a trust controls only what is titled in it, and no court will move the title afterward. The 2021 trust in the first case was a good document that owned nothing. Practice pointer. Every trust plan I prepare includes one funding deed and a written funding list with the account, the institution, and the date each one was retitled, and I ask to see the confirmations, because the widow’s lawsuit was about a list her husband never worked through. A trust-based plan is a flat fee from $3,200 for one person and $4,500 for a couple, and the deed and the retitling instructions are inside that fee. Had the 2021 trust been drafted as a restatement of the 2014 trust, which is what a lawyer who knew about the earlier trust would have prepared, nothing would have needed retitling, because a restatement keeps the same trust and the same titles, and there would have been no petition, no trial and no appeal.

Second, an amendment has to follow the method written into the trust, word for word. The method in the second case required delivery to the trustee, the trust said there would always be two trustees, and delivery to one of them was not enough. Practice pointer. When I amend a trust I read the amendment clause first and follow every step in it, and when a client wants to remove a co-trustee, the removal is served on that co-trustee in writing before anything else is signed, because the son in that case was still a trustee on the day his father died. Avoid amending a trust with a handwritten note, a new will that never names the trust, or a document signed in a lawyer’s office and left in a drawer, because Florida law lets a later document change a trust only when it follows the trust’s own method or refers to the trust expressly, and anything less has to be proved by clear and convincing evidence after a lawsuit.

Third, a lawyer can only restate a document he knows about. The man in the first case never mentioned his 2014 trust to the second lawyer, and the man in the second case never told his son. The first thing I ask at a planning meeting is which documents already exist, including the ones the client believes were replaced, because in both cases the earlier document was the one that controlled in the end.

The 2025 decision was a slip opinion with no reporter citation when I read it, so its wording can still change before publication, and I will check it again before relying on it in a courtroom. What both decisions already settle is enough for planning, which is that funding and the amendment method decide who inherits, and the words of the trust decide nothing until those two are done.

Kevin D. Klagge, Esq., admitted in Florida since 2012. Each 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 October 27, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice, and no attorney-client relationship is created. Whether a trust fits depends on your specific facts.