What Happens If You Die Without Funding Your Trust?

1. What Happens to Property Not in a Trust?

Property left in your own name at death goes through probate. A trust controls only what the trust owns, and the trust owns an asset only when the deed, the account title or the assignment says so. A house still deeded to you, a brokerage account still in your name, or a car titled to you all sit outside the trust, however clearly the trust says you meant them to be in it.

Some assets skip both the trust and probate. An IRA or life insurance policy with a named beneficiary, a bank account with a payable-on-death beneficiary, a brokerage account with a transfer-on-death registration, and property held jointly with a right of survivorship all go straight to the named person. An old beneficiary form can therefore send an account to someone the trust leaves out, which is why funding includes checking every designation.

2. Does a Pour-Over Will Fix an Unfunded Trust?

A pour-over will gets the assets into the trust, but only through probate. A pour-over will is the short will that comes with most trust plans and leaves everything outside the trust to the trustee. Florida gives effect to that gift even though the trust can be amended, and the assets become part of the trust and pass under its terms as amended.

The will does its work in a probate court. The personal representative named in the will files it, is appointed by the court, gathers the assets, publishes a notice to creditors, pays the debts, and then transfers what is left to the trustee. Only then does the trustee distribute under the trust. The family gets the trust’s instructions in the end, along with the court case, the filing fees and the months the trust was meant to avoid.

Without a pour-over will the result is worse. Assets outside the trust pass under Florida’s rules for dying without a will, which our intestate succession guide sets out, and those rules can send the property to different people in different shares than the trust names.

3. Which Probate Does an Unfunded Trust Need?

Florida has three levels of probate, and the value of what was left out decides which one applies.

• Disposition without administration. Disposition without administration applies only where the estate holds no real estate and the remaining personal property does not exceed the funeral and final-illness expenses. The fee with our firm is from $1,500.
• Summary administration. Summary administration applies when the estate, after exempt property, is $150,000 or less, or when the person died more than 2 years ago. The figure rose from $75,000 on July 1, 2026. Our summary administration guide covers the process, and the fee is from $2,500.
• Formal administration. Anything larger goes through full probate with a personal representative, a creditor period and a closing. The fee is from $3,500.

Real estate in another state that never went into the trust needs a second probate in that state, called ancillary administration. Our guide on trusts for out-of-state property explains how funding avoids it. Recording and other government costs are additional and passed through at cost, and advertised fees are honored for 90 days from the posted date.

4. What Happens to a House That Was Never Deeded to the Trust?

A Florida homestead left out of the trust follows its own rules. If you leave a spouse or a minor child, the Florida Constitution limits who can receive the homestead, and the pour-over will cannot send it to the trust for anyone else. A surviving spouse takes a life estate, with the rest to your descendants, unless the spouse elects within 6 months to take a one-half share instead. If you leave no spouse and no minor child, the will can send the homestead into the trust, and the probate court usually enters an order determining that the house is protected homestead, so the title company will insure a later sale.

Protected homestead also matters for the size of the probate. Florida measures the $150,000 summary administration figure after property exempt from creditors, and a protected homestead is exempt, so a paid-off Florida home does not by itself push an estate into formal probate. A second home, a rental or land in your own name has no such protection and counts in full. The homestead in a revocable trust guide explains when putting the homestead in the trust makes sense and when a lady bird deed fits better.

5. Is an Unfunded Trust Still Valid?

Yes. A Florida trust signed with the required formalities is valid even if nothing was ever moved into it, and Florida law says a gift to the trustee under a will does not fail because the trust was revocable, was amended after the will was signed, or held nothing more than the expectation of receiving the gift. The rule on gifts to a trustee is what lets a pour-over will fill an empty trust at death.

The formalities are the part that can fail. A Florida resident’s trust has to be signed with two witnesses and the same formalities as a will for its instructions on who inherits to be valid. A trust signed in front of a notary alone can leave the family with an empty trust and no valid instructions either. Our guide to setting up a living trust in Florida covers the signing.

6. Can a Court Treat an Asset as Being in the Trust Anyway?

A Florida court rarely does. Florida allows a court to reform the terms of a trust when clear and convincing evidence shows a mistake in the trust’s wording. A Florida appeals court held in 2025 that a failure to fund or retitle is a different kind of error. In that case the trust’s creator signed a new trust listing assets that were already titled in an earlier trust and never retitled, and the court refused to rewrite the new trust into a restatement of the old one.

A schedule of assets attached to the trust does not move anything by itself either. A list saying the house is in the trust is a statement of intent, and the county records still show the owner named on the last recorded deed. A signed assignment can move household goods and other untitled personal property, and a deed or a retitling moves everything else.

7. What Should You Never Put in a Trust?

Some assets belong outside the trust on purpose.

• IRAs and 401(k) accounts. Changing the owner of a retirement account to a trust is treated as a withdrawal of the whole balance, which is taxable income. Coordinate these by beneficiary designation instead, and our guide to naming a trust as an IRA beneficiary covers when the trust should be that beneficiary.
• Health savings accounts. An HSA is held in your name and passes by its own beneficiary designation.
• Cars you drive every day. Many families leave vehicles out because of insurance and titling friction.
• Assets you hold for someone else. A custodial account for a grandchild belongs to the grandchild, and it stays where it is.

Everything else, especially the house, the brokerage accounts and the bank accounts, should either be titled in the trust or name the trust as the payable-on-death or transfer-on-death beneficiary.

8. How Do You Fund a Trust While You Are Alive?

Funding is a list of paperwork, and each item takes a signature and sometimes a recording.

1. Real estate. Sign and record a new deed from you to yourself as trustee. Our guide on putting your house in a trust covers the homestead exemption and the title insurance questions.
2. Bank and brokerage accounts. Retitle each account in the trust’s name, or name the trust as the payable-on-death or transfer-on-death beneficiary.
3. Business interests. Assign LLC membership interests or stock to the trust, after checking the operating agreement and, for S corporation stock, the tax rules.
4. Tangible personal property. Sign an assignment of household goods, jewelry and art to the trust.
5. Beneficiary designations. Review every life insurance, annuity and retirement form so each one matches the plan.

Our trust funding guide goes asset by asset, and the revocable living trust guide explains how the whole plan fits together. A trust that is funded also spares your successor trustee the work described in our guide to what happens to a trust when the grantor dies.

What Does It Cost to Fund a Trust, or to Probate What Was Missed?

A deed moving a house into a trust is a flat fee from $550 plus recording. A Complete Trust Plan, which includes the trust, the pour-over will, the power of attorney, the health-care documents and a deed funding the trust, is a flat fee from $3,200, and $4,500 for a couple. Probating assets that were left out 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 condo bought after the trust was signed. A widow signs a trust in 2015 and deeds her house into it. In 2021 she sells the house and buys a condo in her own name, and nobody records a new deed. At her death the condo, her homestead, needs a probate order before her children can sell it, even though the trust names them.

The brokerage account opened online. A retired engineer’s trust holds his house and his bank accounts. He later opens a $210,000 brokerage account online in his own name with no transfer-on-death beneficiary. At his death the account is over the $150,000 summary administration figure, so his daughter opens a formal probate to move it into the trust.

Sources of Law

• Fla. Stat. §732.513(1)-(5) (devises to a trustee; valid though the trust is revocable, amended, or funded only by the expectancy; property becomes part of the trust principal); §733.707(3) (revocable trust liable for estate expenses when the estate is insufficient).
• 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(1) (disposition without administration).
• Art. X, §4(c), Fla. Const.; Fla. Stat. §§732.4015, 732.401(1),(2) (devise and descent of homestead; spouse’s life estate or elected one-half interest within 6 months).
• Fla. Stat. §736.0403 (annotated)(2)(b) (testamentary aspects of a Florida resident’s revocable trust need will formalities); §736.0415 (annotated) (reformation of trust terms for mistake on clear and convincing evidence); McGee v. McGee, No. 2D2024-1447 (Fla. 2d DCA Aug. 15, 2025) (failure to fund or retitle is not a mistake in the terms).
• 26 U.S.C. §408(d)(1) (distributions from an IRA included in income). Tax information, not tax advice.
• Case retold below: In re Estate of McMillian, 603 So. 2d 685 (Fla. 1st DCA 1992). Opinion read in full; retrieved September 30, 2026.

The Trust That Held One Hundred Dollars on Paper

I see cases where the trust was drafted carefully and the plan still failed, because nothing was ever put into it.

In 1979 a woman in Cincinnati signed a will and a trust on the same day, naming a Kentucky bank as trustee. The trust left two-thirds of what it held to a children’s home in Cincinnati, to educate orphans, and one-third to a community action group in Eastpoint, Florida, to build a community center. The trust recited that $100 had been delivered to the trustee, but the bank’s trust officer later testified that the trust was never funded during her life. She moved to Florida and died in Tallahassee in 1988, owning mostly stocks and bonds in her own name. Everything had to go through a Florida probate, and the Kentucky bank named as her executor could not even serve, because it was not qualified to act as a fiduciary in Florida, so the court appointed a Florida affiliate. Then a second problem surfaced. The Eastpoint group had been dissolved by the state in 1981 for not filing an annual report and was reinstated in 1989, after her death, and the children’s home argued that the one-third gift had lapsed. The personal representative asked the court to decide in 1990, the trial court ruled for Eastpoint in 1991, and the appeals court affirmed in August 1992, more than four years after she died.

My reading of that case is that the owner did almost everything right on paper, and the paper was all there was. I have a few take-home points.

The first is the empty trust. A recital that the trustee received $100 moves nothing. The stocks and bonds stayed in her name, so the plan she built to run outside court ran through one.

The second is the out-of-state fiduciary. A bank or relative from another state who can serve as trustee may not qualify to serve as the Florida personal representative. Avoid a plan whose backup depends on a probate that the named executor cannot handle.

The third is the beneficiary that stops existing. A charity or organization named in a trust should come with a fallback, and the trust should say whether a lapse in its corporate status matters.

An owner can prevent all three at the signing stage by funding the trust the same week it is signed, and every Complete Trust Plan I prepare, flat fee from $3,200, includes the deed that puts the house in the trust. One limit is worth stating. The fight over the Eastpoint gift would have happened even in a funded trust, because it turned on the gift’s wording. What funding would have avoided is the probate that came before it.

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.