Avoiding Probate in Florida: The Power of Living Trusts

Probate is often viewed as a lengthy, costly, and public process that Florida families strive to avoid when planning their estates.

Probate is often viewed as a lengthy, costly, and public process that Florida families strive to avoid when planning their estates. Fortunately, one of the most effective tools for sidestepping probate is the living trust.

This article explores how living trusts work, their advantages over other probate-avoidance strategies, and why they have become the cornerstone of modern Florida estate planning.

What Is Probate and Why Avoid It?

Probate is the court-supervised process of validating a will, settling debts, and distributing a deceased person’s assets. In Florida, probate can take several months—or even years—incur significant legal fees, and make your family’s financial affairs public.¹

How a Living Trust Works in Florida

A living trust, also known as a revocable trust, is a legal document that allows you (the grantor) to transfer ownership of your assets to a trust during your lifetime. You typically serve as the initial trustee, managing the assets as you see fit. Upon your death or incapacity, a successor trustee—whom you name in the trust document—takes over and manages or distributes the assets according to your instructions.²

Key steps to creating a living trust in Florida:

• Draft a trust document naming yourself as trustee and someone you trust as successor trustee.

• Transfer ownership of your assets (real estate, bank accounts, vehicles, investments) into the trust.

• Manage your assets as usual during your lifetime.

• Upon your death, your successor trustee distributes the assets to your chosen beneficiaries—without court involvement.³

Why Living Trusts Are So Effective at Avoiding Probate

1. Probate Avoidance

The primary reason Floridians use living trusts is to avoid probate. Assets titled in the name of the trust pass directly to beneficiaries, bypassing the court process entirely.⁴

This means:

• Faster distribution: Beneficiaries receive assets quickly, often in weeks rather than months or years.

• Lower costs: Avoiding probate court and attorney fees preserves more of your estate for your heirs.

• Privacy: Unlike probate, which is a matter of public record, living trusts keep your financial affairs and asset distribution confidential.⁵

2. Flexibility and Control

Living trusts in Florida are typically revocable, meaning you can modify or dissolve them at any time while you are alive and competent. This flexibility allows you to adapt your estate plan as your circumstances change.⁶

3. Incapacity Planning

If you become incapacitated, your successor trustee can immediately step in to manage your trust assets—without the need for a court-appointed guardian or conservator. This ensures continuity and protects your family from the complications of guardianship proceedings.⁶

4. Ancillary Probate Avoidance

If you own property in multiple states, a living trust can help you avoid ancillary probate (a secondary probate process in another state), saving your family time and money.⁶

5. Providing for Children and Special Needs Beneficiaries

A living trust allows you to set conditions for distributions, such as age or milestones, and to provide for minors or beneficiaries with special needs. This ensures assets are managed responsibly and according to your wishes.¹

How to Properly Fund a Living Trust

A living trust only avoids probate for assets that are actually transferred into it. This means you must re-title your property—such as deeds for real estate, bank accounts, and investment accounts—in the name of the trust.⁷ If you fail to fund the trust, those assets may still be subject to probate.⁸

Living Trusts vs. Other Probate-Avoidance Strategies

Method	Probate Avoidance	Privacy	Flexibility	Asset Protection	Best For
Living Trust	Yes	Yes	High	Limited	Most families, blended families
Joint Ownership	Yes (with survivorship)	No	Moderate	Limited	Married couples, simple estates
Pay-on-Death (POD) Designations	Yes	No	Moderate	Limited	Bank accounts, simple transfers
Lady Bird Deed (Enhanced Life Estate)	Yes (for real estate)	No	Limited	Limited	Real estate, Medicaid planning

While joint ownership and beneficiary designations can avoid probate for specific assets, only a living trust provides comprehensive control, privacy, and detailed instructions for asset management and distribution.⁷

Common Misconceptions About Living Trusts

• “A will is enough to avoid probate.” False. A will must go through probate in Florida. Only assets held in a living trust or with proper beneficiary designations avoid probate.⁹

• “I can just add my children to my bank account or deed.” This can expose your assets to your children’s creditors or legal issues and may not provide the control or protection you want. A living trust is generally safer and more flexible.¹⁰

Potential Drawbacks and Considerations

• Not all assets avoid probate. Only assets properly titled in the trust avoid probate. Regular reviews and updates are essential.⁸

• No direct tax benefits. Revocable living trusts do not provide estate tax savings, but they can be paired with other strategies for tax efficiency.¹¹

• Costs and complexity. Setting up and maintaining a living trust involves legal fees and ongoing administration, but these are typically outweighed by the savings and benefits.¹¹

Conclusion: The Power of Living Trusts in Florida Estate Planning

A living trust is one of the most effective, flexible, and private ways to avoid probate in Florida. By transferring your assets into a trust, you ensure that your loved ones receive their inheritance quickly and efficiently, without the delays, costs, and publicity of probate court. For families with complex estates, minor children, or property in multiple states, a living trust provides unmatched peace of mind and control.

Before establishing a living trust, consult with a qualified attorney-owned trustee group to ensure your trust is properly drafted, funded, and maintained to achieve your goals.

Sources

1. Florida Bar: Consumer Pamphlet—Wills and Trusts

2. Nolo: Avoiding Probate in Florida

3. Florida Probate Firm FAQ: Living Trusts & Probate

4. Cornell LII: Florida Statutes—Trusts

5. ACTEC Foundation: Estate Planning Essentials

6. Florida Probate Code § 736.0602

7. ABA—Understanding Living Trusts

8. Florida Trust Code § 736.1017

9. ACTEC: Wills vs. Trusts Comparison

10. ABA: Joint Ownership & Estate Planning Risks

11. Florida Bar Journal: Revocable Trusts and Tax Considerations

---

Heather Maltby, Esq. and Jennifer Akin, Esq. of Coastal Trustee Group, LLC, of St. Augustine, Florida, providing lifetime, at-need, and multi-generational professional trustee services.

Coastal Trustee Group LLC (CTG) is an independent, boutique trustee firm dedicated to serving families in Northeast Florida and the Fun Coast with integrity, objectivity, and care. Founded by attorneys Jennifer Akin and Heather Maltby— both trusted names in St. Augustine estate law— CTG was created to provide a better solution for families who want professional, impartial trust administration without the conflicts or burdens that can arise when appointing an individual trustee. For a consultation, request a consultation online or call (904) 827-7777.

---

Important Disclaimer from Coastal Trustee Group

Using this website or emailing us does not create an attorney-client relationship.

No attorney-client relationship formed. Viewing this website or sending an email to Coastal Trustee Group, Attorney Heather S. Maltby, or Attorney Jennifer Akin does not establish an attorney-client relationship. We only form such relationships through a formal, written agreement that complies with all applicable laws and ethical rules.

Do not send confidential information. Please do not email us any confidential information about your legal situation. Electronic communications may not be secure, and sending confidential details before becoming a client could risk your privacy and potentially waive any legal privileges. Even if you are a client, some states may not consider email communications privileged. It's always best to contact an attorney directly rather than relying on email for sensitive matters.

Website content is not legal advice. This website provides general information only and is not a substitute for legal advice. Do not rely on anything you read here as legal counsel. Always consult with a qualified attorney in your state for advice specific to your situation.

Legal deadlines are crucial. Legal deadlines are strict and can significantly impact your rights. If you have a legal issue, it's critical to speak with an attorney as soon as possible. Never delay seeking legal counsel or rely on email as your primary method of contacting an attorney.

Your use is at your own risk. All information on this website is for informational purposes only. We do not guarantee its accuracy, completeness, or timeliness. Using this website and its content is entirely at your own risk. Coastal Trustee Group is not liable for any damages resulting from your use of or reliance on this website.

Terms may change. These terms and disclaimers can change at any time without notice. It's your responsibility to review them regularly.