What Is a Testamentary Trust in Florida, and When Should You Use One?

1. What a Testamentary Trust Is

A testamentary trust is a trust written into a will. The will says, in its own pages, that part of the estate goes to a named trustee to hold for a named beneficiary under stated rules, such as paying for a daughter’s education and giving her the balance at 30. Florida’s trust code recognizes a trust created by a will as one of the three ways to create a trust, and it treats the person who signed the will as the trust’s settlor.

A testamentary trust does not exist while the person who signed the will is alive. The trust holds nothing, needs no bank account and has no trustee at work. The trust comes into being after death, once the will is admitted to probate.

Because the trust lives inside the will, the will’s signing rules decide whether the trust exists at all. A Florida will must be signed at the end by the person making it, in the presence of at least two witnesses. A trust clause in a will that was not properly witnessed fails along with the rest of the will. The rules for Florida wills and how to write a will in Florida cover the signing in detail.

2. Why a Testamentary Trust Goes Through Probate

A testamentary trust can receive property only through probate, because the will that creates it has no effect until a court admits it. The sequence runs in a fixed order.

1. The will is deposited. Whoever holds the original will must deposit it with the clerk of court within 10 days after learning of the death.
2. A personal representative is appointed. The probate court admits the will and appoints the personal representative, the Florida term for an executor.
3. The estate’s bills are paid. The personal representative pays the expenses and debts in the order Florida sets.
4. The trustee receives the property. A personal representative cannot be required to deliver a gift or share until 5 months after the court issues letters, so the trust is usually funded months into the probate.

Two consequences follow. The family pays for a probate case before the trust holds anything, and the will, with the trust’s terms inside it, stays in the court file. Our comparison of the trustee and the executor explains how the two jobs hand off, and the Florida probate cost calculator estimates what the probate step costs.

After the trust is funded, the court does not supervise it unless someone asks. A Florida trust is not subject to continuing court supervision unless a court orders it, and a question about what the trust’s terms mean can be filed in the probate case for the estate under the probate rules.

3. When Families Use One

A testamentary trust fits a family whose main concern is who manages an inheritance after death, rather than avoiding probate. There are four common reasons.

1. Young children. Property left outright to a child can go to a custodian under Florida’s transfers to minors law, and the custodianship ends at 21, or at 25 if the gift is set up that way. A trust in the will can hold the share longer and release it in stages. Every simple will we draft holds a minor’s share in trust until 25, 30 and 35 rather than handing it over at once.
2. A beneficiary with a disability. A third-party special needs trust written into the will lets a disabled child’s share pay for extras without costing the child SSI or Medicaid.
3. A surviving spouse, then the children. A trust can pay a spouse the income for life and send what is left to the children of a first marriage. Our page on the Florida QTIP trust covers the tax version of that plan.
4. A beneficiary who should not receive a lump sum. A spendthrift trust in the will keeps the share away from the beneficiary’s creditors until the trustee pays it out.

4. The Testamentary Trustee

The testamentary trustee is the person or company the will names to manage the trust. The trustee’s job begins when probate delivers the property, and from then on the job is the same as any Florida trustee’s. Our guide to what a trustee is lists the duties in full.

A person named as testamentary trustee may accept or decline. Once the trustee accepts, a testamentary trust is irrevocable from the start, so the duties to the beneficiaries begin at once.

• Notice within 60 days of accepting, giving the trustee’s name and address.
• Notice within 60 days of learning of the irrevocable trust, telling the qualified beneficiaries the trust exists and that they may ask for a copy and are entitled to accountings.
• An accounting at least once a year to each qualified beneficiary. Our guide to Florida trust accounting shows what the report must contain.

The testamentary trustee is entitled to reasonable compensation if the will sets no fee, as our page on Florida trustee fees explains. When one person is both the personal representative and the testamentary trustee, the two fees are figured and paid separately, and the story at the bottom of this page shows why that matters. Our guides to the successor trustee, trust administration and beneficiary rights cover the rest of the job from both sides.

5. Testamentary Trust vs. Living Trust

The trust terms themselves can be identical. A child’s share held until 30 works the same way in a will or in a living trust. What differs is how the trust gets its property and when it starts.

A pour-over will is a different document. A pour-over will leaves property to the trustee of a living trust that already exists, and Florida law says that property joins the existing trust and is not held in a separate testamentary trust. Our comparison of a will and a living trust covers the choice in more depth.

6. A Florida Homestead in a Testamentary Trust

Florida has a statute written for homestead left to a trust, and it applies to testamentary trusts and to revocable trusts alike. Three rules matter.

1. The constitution comes first. A person survived by a spouse or a minor child cannot leave the homestead against the limits in the Florida Constitution. If the trust tries to, the gift fails and title passes as Florida’s homestead descent statute directs at the moment of death.
2. A general direction to pay debts does not expose the home. A power of sale or a general instruction to pay debts and expenses does not subject protected homestead to the estate’s creditors or costs.
3. A direction to sell can keep title in the trust. Where the trust directs a sale of a home that is not subject to the constitutional limits, title stays with the trustee under the trust’s terms.

Our page on homestead in a trust covers the statute, and our guide to Florida homestead law covers who can inherit the home.

7. Can a Testamentary Trust Be Changed?

While you are alive, a testamentary trust changes whenever you change your will, by a codicil or a new will signed with the same formalities. After death the trust is irrevocable. Florida still allows changes in limited ways, including by unanimous agreement of the trustee and all the qualified beneficiaries for trusts created on or after January 1, 2001, as the page on changing a trust by agreement explains, or by the trustee moving the property to a new trust under the decanting statute.

What Does a Will With a Testamentary Trust Cost?

A simple will that holds a minor’s share in trust until 25, 30 and 35 is a flat fee from $299. The Secure Will Estate Plan, which adds a durable power of attorney, the health-care documents and a lady bird deed on your home, is a flat fee from $1,200, and $1,950 for a couple. Special needs provisions written into a will are a flat fee from $4,000. Recording and other government costs are additional and passed through at cost. Advertised fees are honored for 90 days from the posted date. Administering a testamentary trust after a death is a flat fee quoted at consult, and any dispute that becomes a lawsuit is litigation, quoted per matter.

Frequently Asked Questions

Common Situations

The young parents. A couple with two children under 10 own a condo and have life insurance naming each other. A living trust would cost more than they want to spend now, so each signs a will that leaves everything to the other and, if both die, holds the children’s shares in a testamentary trust with the wife’s sister as trustee until each child turns 30. The life insurance names the trust under the will as the contingent beneficiary.

The son who cannot manage money. A widow leaves her estate equally to her three children, and the share of the son who has struggled with debt goes into a trust in her will, paid out by his sister as trustee for his housing and health care. A spendthrift clause keeps most of his creditors from reaching the share while it stays in the trust.

Sources of Law

• Fla. Stat. §736.0401(1) (trust created by transfer by will or other disposition taking effect at death); §736.0103 (annotated)(21) (settlor includes a testator); §736.0403 (annotated)(1) (formalities for a trust not created by will).
• Fla. Stat. §732.502(1) (execution of wills; signature at the end; two attesting witnesses); §732.901(1) (deposit of the will with the clerk within 10 days after learning of the death); §732.513(5) (property devised to an existing trust is not held under a testamentary trust unless the will provides otherwise).
• Fla. Stat. §733.707(1) (order of payment of expenses and obligations); §733.801(1) (no required delivery of a devise until 5 months after letters).
• Fla. Stat. §736.0201(3),(5) (no continuing judicial supervision unless ordered; construction of a testamentary trust may be filed in the probate proceeding); §736.0701 (annotated) (accepting or declining); §736.0708 (annotated)(1) (reasonable compensation); §736.0813 (annotated)(1)(a),(b),(d) (60-day notices; annual accountings).
• Fla. Stat. §736.1109(1)-(4) (testamentary and revocable trusts; homestead protections; applies to testamentary trusts); §736.0412(1),(4)(a) (nonjudicial modification after the settlor’s death; not for trusts created before January 1, 2001).
• Fla. Stat. §710.123(1)(a) (a custodianship for a minor ends at 21, or at 25 where the transferor so provides).
• Case retold below: Lanford v. Phemister, No. 5D21-1015 (Fla. 5th DCA Apr. 8, 2022). The court stated that its decision does not decide, and should not be cited for, whether a trust beneficiary is entitled to homestead protection as an heir, and this page does not rely on it for that point. Opinion read in full; retrieved September 30, 2026.

What a Trust in a Will Looks Like After the Funeral

I see cases where the will was carefully written and the trust inside it worked, and the family still spent years in court over who was paid from what. A trust created by a will carries probate with it, and the two proceedings can pull against each other.

A decision of a Florida appeals court in April 2022 follows that shape. A woman in Brevard County died in 2016. Her will left some personal property to her sister and left everything else, including her home, to a trust in the will for her sister’s benefit, with a charitable trust to receive whatever remained after the sister. The will named the person who ran that charitable trust as personal representative and as trustee, and the probate court appointed someone else to both jobs because of a conflict of interest. The home was protected homestead, and the court authorized the new trustee to sell it and hold the money in escrow. The sister died in 2018, two years after the trust began, and the remainder passed to the charity. The personal representative and trustee then asked to be paid from the sale money for her work in both jobs, the charity objected, and the case went to the appeals court. The court held that her fees as personal representative could not come from the homestead proceeds, because the constitution protects homestead from estate costs, and that her fees as testamentary trustee could.

My reading of that case is that the capacity in which the work was done decided which pot paid for it. In reviewing Florida cases on trusts created by wills, I have a few take-home points.

The first is the named fiduciary. The woman chose someone connected to the charity at the end of her plan, and the court would not let that person serve. The practice pointer is to ask, when choosing a personal representative and a trustee, whether that person will be dealing with an interest of their own, and to name an alternate who has none.

The second is the homestead. A home left to a trust in a will carries Florida’s homestead rules into the trust, and those rules decide which costs the home can bear. Avoid assuming the home will pay the estate’s bills because the will says to pay debts, because Florida law says a general direction of that kind does not reach protected homestead.

The third is time. The trust lasted two years before the sister died, and the fee dispute outlived her by four. A living trust that already held the home would have kept the home out of probate, and out of the personal representative’s fee request. An owner who wants a trust for one person’s lifetime can choose either document, and the choice turns on whether the probate step is worth the lower cost today.

One limit is worth stating plainly. The appeals court said in terms that it was not deciding whether a trust beneficiary counts as an heir for homestead protection, and that its decision should not be cited for that question, so this case does not answer it.

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 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.