What a Testamentary Trust Is

What a Testamentary Trust Is

A testamentary trust is a trust written inside your will. Florida law allows a will to create a trust that takes effect when the will is admitted to probate, after you die. The trust does not exist during your lifetime. Property passes through probate first, and then the personal representative distributes it into the trust.

Parents often use a testamentary trust to hold a share for a minor child or a young adult who is not ready for an outright inheritance. The will names a trustee and sets the age at which the child receives the property outright. Until that age, the trustee manages the funds and can spend them for the child’s health, education, maintenance and support.

A testamentary trust is irrevocable once it comes into being. The person who wrote it is gone. The trustee administers the trust under the Florida Trust Code, and the will can keep the trustee under court supervision if it says so.

The advantage of a testamentary trust is simplicity during life. You write the trust inside the will. You do not need to retitle property or change beneficiary designations while you are alive. The will does the work at death, and probate moves the property into the trust.

The limitation is that the property reaches the trust only through probate. Probate takes time. Probate is public. Probate has costs. The testamentary trust inherits all of those, because probate is how it gets started.

What a Living Trust Is

A living trust is a trust you create and fund during your lifetime. Florida law calls it a revocable trust because you can change or revoke it as long as you have capacity. You sign the trust document, name yourself as trustee, and then transfer property into the trust’s name.

Property held in a living trust does not go through probate when you die. The successor trustee you named takes over, follows your instructions, and distributes the property to your beneficiaries. There is no court proceeding for trust assets. The trust is a private document, not a court record.

A living trust requires more setup than a testamentary trust. You must move property into it. Real estate needs a deed. Bank accounts need retitling. Brokerage accounts need a change of registration. Anything you forget stays outside the trust and may need probate through a pour-over will.

A living trust can also protect you during incapacity. If you lose the ability to manage your affairs, the successor trustee steps in without going to court for a guardianship. The trust instructions control how your property is managed, and the transition happens privately.

The living trust is revocable during your life. After you die, it becomes irrevocable. The successor trustee administers it under the Florida Trust Code, just as a trustee would administer a testamentary trust. The difference is that the living trust skipped probate on the way in.

Probate: The Difference That Decides It

Probate is the reason people choose one trust over the other. A testamentary trust requires probate to come into existence. A living trust can avoid it, but only for property that was actually moved into the trust.

A testamentary trust is written inside a will. The will must be admitted to probate. The personal representative collects the estate, pays debts, and distributes what remains. The distribution that goes into the testamentary trust is the last step of probate, not a way around it.

A living trust holds property during your life. When you die, the successor trustee distributes that property according to the trust’s terms. There is no court filing for trust assets. No personal representative is appointed for them. The trustee acts under the trust document, not under court supervision.

Summary administration in Florida is available when an estate is worth $150,000 or less (excluding exempt property) or when the decedent has been dead for more than two years. Even a small estate with a testamentary trust must go through some form of probate to activate the trust. A living trust with the home and the accounts already inside it may avoid administration entirely, leaving nothing that requires court involvement.

A Trust for Minor Children: Which Kind?

Parents with minor children need a plan for what happens to their children’s inheritance. A minor who inherits more than $15,000 needs a court-appointed guardian of the property to manage it. A trust avoids that guardianship by naming a trustee you choose.

A testamentary trust inside a will is often the right answer for young parents. The trust holds each child’s share until the ages you set. You might allow partial distributions at 25, 30 and 35, or you might keep everything in trust until 30. You decide, and the trustee follows your instructions.

A testamentary trust works well when most of the parents’ wealth is in a homestead that passes by lady bird deed and retirement accounts that pass by beneficiary designation. Those assets skip probate on their own. What remains may be modest. Writing the trust inside a will keeps the plan simple during life. There is no separate trust document to maintain and no property to retitle.

A living trust makes sense when the parents own real estate beyond the homestead, investment accounts that are not retirement accounts, or business interests. Those assets would need probate without a trust. Moving them into a living trust now avoids probate later and keeps management private if a parent becomes incapacitated.

Both kinds of trust can hold property for minor children. The testamentary trust costs less to set up because it lives inside the will. The living trust costs more but does more. A Secure Will Estate Plan with a testamentary trust is $1,200 for one person and $1,950 for a couple. A Complete Trust Plan with a living trust is $3,200 for one person and $4,500 for a couple.

Privacy, Control and Incapacity

A will becomes a public record when it is filed with the probate court. Anyone can read it. A testamentary trust written inside that will is part of the same public record. The terms you set, the ages you chose for your children, and the trustee you named are all visible.

A living trust is a private document. It does not get filed with any court unless there is a dispute. A qualified beneficiary may request a complete copy of the trust, but the public has no access. Neighbors, competitors and curious relatives cannot look it up.

A living trust also gives you protection during incapacity. If you cannot manage your affairs, the successor trustee you named takes over the trust property. There is no court petition. There is no guardianship proceeding. The trustee follows the instructions in the trust and manages your finances privately.

A testamentary trust cannot help during your lifetime because it does not exist until you die. Incapacity planning with a will alone depends on a durable power of attorney. The agent you name in that document can manage property outside the trust. The agent cannot manage trust property because there is no trust property yet.

A living trust does not replace the power of attorney. You still need one for accounts that stay outside the trust, for dealing with the IRS, and for decisions that only an agent can make. The trust and the power of attorney work together.

The Unfunded Living Trust: The Failure to Avoid

A living trust avoids probate only for property that was moved into it. Property left outside the trust goes through probate, even if the trust document says otherwise. An unfunded or partly funded living trust is the most common way a trust plan fails.

Ellerson v. Moriarty reached the Florida Second District Court of Appeal in 2021. The complaint alleged that a lawyer prepared a revocable trust and a will for a client and that property the client meant to pass through the trust was never moved into it. The property did not pass as the trust said. The trial court dismissed the malpractice complaint. The appeals court reversed and sent the case back. Nothing was decided on the merits, but the case shows how an unfunded trust becomes a lawsuit.

A pour-over will catches what was left outside the trust. The will says that anything in the probate estate pours into the trust after probate. The trust then distributes it to your beneficiaries. The pour-over will works, but it works through probate. The assets you forgot are public. The assets you forgot cost the estate time and money to administer.

Funding a living trust takes attention. Real estate needs a deed. Bank accounts need new signature cards. Investment accounts need a change of registration. Beneficiary designations on retirement accounts and life insurance need updating if the trust is the intended recipient. A trust that sits unfunded defeats its own purpose.

Can You Have Both?

Florida law allows you to have both a testamentary trust inside your will and a living trust that operates during your lifetime. The question is why you would.

A living trust that owns the home and the investment accounts avoids probate for those assets. A pour-over will catches anything left outside. If the pour-over will also creates a testamentary trust, the testamentary trust would hold whatever pours over after probate. The testamentary trust does not avoid probate for those assets. The assets still went through probate to reach the pour-over will.

A more common arrangement is a living trust with a pour-over will that does not create a separate testamentary trust. The pour-over will simply directs everything into the living trust. The living trust then holds the property according to its terms, including any provisions for minor children or young adults.

A testamentary trust makes sense when probate is already expected and a living trust would add cost without adding benefit. A living trust makes sense when you want to avoid probate, plan for incapacity, or keep your estate plan private. Combining them adds complexity without adding function in most cases.

What Each Costs

A testamentary trust is part of your will, so the cost is the cost of the will plan. The Secure Will Estate Plan at this firm is $1,200 flat fee for one person and $1,950 for a couple. That plan includes five documents (will, durable power of attorney, health-care surrogate, living will and HIPAA authorization) plus a lady bird deed on the home (recording additional). The trust for your children is written into the will.

A living trust is a Complete Trust Plan at $3,200 flat fee for one person and $4,500 for a couple. That plan includes the revocable living trust, the pour-over will, the powers of attorney and health-care documents, and the deed moving the home into the trust (recording additional).

A revocable trust drafted alone, without the other documents, is $2,400 flat fee. The fees posted September 2026 are honored 90 days. Government costs are additional and passed through at cost.

Frequently Asked Questions

Common Situations

A couple in their early forties had two young children, a homestead with a lady bird deed already recorded, and retirement accounts with each other as beneficiaries. Their only other assets were checking and savings accounts. They chose the Secure Will Estate Plan at $1,950. The will included a testamentary trust that holds each child’s share until 25, with further distributions at 30 and 35. A living trust would have added cost without avoiding probate, because the homestead and retirement accounts already pass outside probate.

A widower signed a revocable living trust with the intention of avoiding probate for his home and brokerage account. The trust document was complete. The pour-over will was signed. The deed and the account retitling never happened. When he died, the home and the brokerage account went through probate. The pour-over will directed them into the trust, and the trust distributed them to his children. The trust worked, but it worked through probate, with the delay and cost he meant to avoid.

Sources of Law

• Methods of creating a trust: Fla. Stat. §736.0401 (annotated)
• Trusts created by will: Fla. Stat. §736.0403 (annotated)
• Devises to a trustee: Fla. Stat. §732.513
• Trust liable for estate expenses: Fla. Stat. §733.707(3)
• Duty to inform and account: Fla. Stat. §736.0813 (annotated)
• Summary administration: Fla. Stat. §735.201
• Ellerson v. Moriarty, No. 2D20-2653 (Fla. 2d DCA June 23, 2021) (allegations on a motion to dismiss; corpus: reference/caselaw/funding/ellerson-v-moriarty-2d20-2653.md).

Related Guides

Testamentary trusts · Florida living trusts · Trust under agreement vs trust under will · How to fund a living trust · Pour-over wills

Which Trust I Draft for Parents of Young Children

In 14 years of law practice, I have seen more trust plans fail from missing paperwork than from missing language. The trust document can be perfect. The trust can still fail if the property never made it inside.

I have a few take-home points.

The first is that a testamentary trust is simpler to set up and costs less, but it does not avoid probate. The trust is written inside the will. The will must be admitted to probate. The personal representative distributes the property into the trust as the last step. Young parents whose main asset is a homestead passing by deed often choose this path because there is little left that needs probate.

The second is that a living trust avoids probate only for property that was actually transferred into it. In Ellerson v. Moriarty, decided by the Florida Second District Court of Appeal in 2021, the complaint alleged that a lawyer prepared a revocable trust and a will for a client and that property the client meant to pass through the trust was never moved into it. The trial court dismissed the malpractice complaint. The appeals court reversed and sent the case back. Nothing was decided on the merits, but the allegations show how an unfunded trust becomes a lawsuit. The pour-over will catches what was left out, but only through probate.

The third is that both kinds of trust are administered under the same trust code once they exist. The difference is how the property reaches the trust. A testamentary trust gets its property through probate. A living trust gets its property through deeds and account retitling done during life.

Avoid signing a living trust without a plan to fund it. A trust that sits unfunded is a document, not a plan.

One honest limit is that a living trust requires ongoing attention, because property you acquire later must be moved into it or it falls outside the plan.

Kevin D. Klagge, Esq., admitted in Florida since 2012. General information rather than advice on your situation.

Updated on October 29, 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. Do not send confidential information until we have agreed to represent you.