How to Create a Living Trust in Florida
What Is a Living Trust in Florida?
A legal arrangement where you transfer assets into a trust during your lifetime, allowing them to pass to beneficiaries without probate.
In Florida, this document is officially known as a Revocable Living Trust and is governed by Florida Statutes Chapter 736 (Florida Trust Code).
Florida Requirements
| Requirement | Details |
|---|---|
| Minimum Age | 18 years old |
| Witnesses Required | 0 — Florida does not require witnesses for a living trust. The trust must be signed by the settlor (the person creating the trust). |
| Notarization | Not required — Notarization is not required but is strongly recommended. A notarized trust is necessary to transfer real estate into the trust via a recorded deed. |
| Self-Proving Affidavit | Not applicable to living trusts. |
| Holographic (Handwritten) | Not allowed — Living trusts should be formally drafted and signed. |
| Governing Statute | Florida Statutes Chapter 736 (Florida Trust Code) |
How to Create a Living Trust in Florida: Step by Step
- 1
Inventory your assets
List all assets you plan to place in the trust: real estate (especially homestead property), bank accounts, investments, vehicles, and valuable personal property.
- 2
Choose your trustee and successor trustee
You will typically serve as your own initial trustee. Name a successor trustee who will manage the trust if you become incapacitated or pass away. Florida allows corporate trustees as well.
- 3
Name your beneficiaries
Decide who will receive the trust assets, in what proportions, and under what conditions. Consider whether distributions should be outright or held in continuing trusts for younger beneficiaries.
- 4
Draft the trust document
Create a trust document that complies with Florida Trust Code Chapter 736, including clear identification of the trust property, the purpose, and the beneficiaries.
- 5
Sign and notarize the trust
Sign the trust document and have it notarized. While notarization isn't strictly required, it's essential for transferring real estate and adds an extra layer of validity.
- 6
Fund the trust
Transfer assets into the trust by changing titles, deeds, and beneficiary designations. For Florida real estate, record a new deed transferring the property to the trust. Note: transferring homestead property requires special care.
- 7
Create a pour-over will
Draft a pour-over will to capture any assets not transferred into the trust during your lifetime. This ensures everything ultimately flows into the trust, though pour-over assets will pass through probate.
Living Trust Costs in Florida
What you can expect to pay for a living trust in Florida, depending on how you create it.
Common Mistakes When Creating a Living Trust in Florida
Creating a trust but never funding it
A trust only controls assets that are transferred into it. An unfunded trust provides zero probate avoidance benefit and your assets will go through probate as if the trust didn't exist.
Improperly transferring homestead property
Florida homestead has unique constitutional protections. Transferring your homestead into a trust requires careful drafting to preserve your homestead exemption from creditors and property tax benefits. Improper transfers can jeopardize these protections.
Forgetting to update the trust after major life changes
Marriage, divorce, births, deaths, and major asset acquisitions should all prompt a review of your trust. Assets acquired after creating the trust must be explicitly transferred into it.
Florida-Specific Considerations
- •Florida has no state income tax and no state estate tax, which simplifies trust tax planning compared to states with their own estate or inheritance taxes.
- •Florida's homestead protections are among the strongest in the nation. Placing homestead property in a living trust requires careful drafting to preserve the constitutional homestead exemption from creditors and property tax benefits.
- •Florida's probate process can be time-consuming, typically taking 6–12 months or longer. A funded living trust avoids probate entirely for trust assets, providing faster distribution to beneficiaries.
- •Florida law (Fla. Stat. § 736.0403) requires that a trust's creation be evidenced by a document signed by the settlor. Oral trusts of personal property are technically possible but not practical for estate planning.
- •Florida does not impose any separate registration or filing requirement for living trusts. The trust document remains private unless it becomes subject to litigation.
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Frequently Asked Questions About Living Trust in Florida
- Do I still need a will if I have a living trust in Florida?
- Yes. A pour-over will catches any assets not transferred into the trust and handles matters like naming guardians for minor children, which a trust cannot do.
- Will my homestead exemption be affected by a living trust?
- If properly structured, transferring your homestead to a revocable living trust should not affect your homestead exemption from creditors or your property tax benefits. However, improper transfers can jeopardize these protections, so work with a Florida attorney.
- Is a living trust public record in Florida?
- No. Unlike a will, which becomes public record when filed for probate, a living trust remains private. This is one of the key advantages of a trust over a will in Florida.
- Does Florida have a transfer-on-death deed?
- Yes. Florida enacted the Lady Bird Deed concept and enhanced life estate deeds, which can transfer real estate outside probate. However, these are not identical to the transfer-on-death deeds available in some other states. A living trust remains the most reliable probate avoidance tool for real estate.