Florida Wills vs. Trusts
Florida offers residents significant advantages for estate planning with its tax-friendly environment and flexible legal framework. The Sunshine State has no state income or estate taxes, provides streamlined probate for estates under $75,000, and recognizes electronic wills witnessed via online audio/video conference. With strong spousal protections including a guaranteed 30% elective share and constitutional homestead provisions, plus Lady Bird deeds as alternatives to transfer-on-death real estate transfers, Florida residents have powerful estate planning tools to protect their legacy while minimizing expenses and delays for their heirs.
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US Map For The Different Will and Trust Requirements by State
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Florida Will Requirements
When deciding between a will or trust in Florida, it’s important to understand the requirements for a valid Last Will and Testament:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old (or an emancipated minor)
- Format: Must be in writing
- Signature: Must be signed by the testator
- Witnesses: Must be attested by two witnesses who must sign in the testator’s presence and in each other’s presence
Mental Capacity
In general, Florida courts have held that a testator is “of sound mind” if he or she:
- Understands what property is subject to the will
- Knows who will benefit from the bequests
- Comprehends the overall implications of executing the document
A party challenging a will has the burden of demonstrating that the testator was not of sound mind when the will was signed.
Self-Proving Wills
If a will includes a statutorily compliant notarized affidavit, the will is deemed “self-proving” in probate, and, in most cases, no additional evidence of its authenticity is necessary.
The affidavit must be signed under oath by the testator and both witnesses. The affidavit must also include the testator’s acknowledgement that, when signing, the testator intended the document to be a will.
Likewise, the witnesses must acknowledge within the affidavit that they witnessed the testator signing the will (or stating that he or she previously signed the will) and declaring that the document is in fact intended as a will.
Memorandum of Personal Property
Before or after executing a will, a Florida testator may create a written list of tangible personal property for use as evidence of the testator’s intended disposition of all items included in the list.
Commonly called a memorandum of personal property, the list must be:
- Referenced in the will
- Signed by the testator
- Must describe the individual items and intended recipients with reasonable certainty
Strict Compliance
As a general rule, Florida courts require strict compliance with the legal formalities required for wills. As a result, minor technical defects that might be overcome in some other jurisdictions are likely to render a Florida will invalid.
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Amendment, Revision, and Revocation of Florida Wills
Amending a Florida Will
A Florida will can be amended by execution of a codicil, which is a separate document that effectively acts as an addendum to an existing will.
Codicils must satisfy all prerequisites that apply to the creation of a will—that is, they must be in writing, signed by an adult testator of sound mind, and witnessed by two parties.
Revoking a Florida Will
Florida’s Probate Code provides that a will is revoked if it is intentionally destroyed by:
- Burning, tearing, canceling, defacing, or obliterating by the testator or someone else at the testator’s direction
- For electronic wills: by deleting, canceling, rendering unreadable, or obliterating the electronic will
Revocation by Later Will
Additionally, a will is revoked if the testator—observing all formalities required for creation of a will—executes a later will or codicil that:
- Expresses the testator’s intention to revoke the original will, or
- Includes provisions that are inconsistent with the original will
In the latter case, the original will is only voided with regard to the inconsistent provisions.
Holographic and Oral Wills
Holographic Wills
Florida law does not recognize holographic wills (i.e., a will in the decedent’s handwriting). A will written out by hand and signed by the testator can be valid, but only if it is also witnessed by two disinterested parties.
Oral (Nuncupative) Wills
Florida does not recognize nuncupative wills (i.e., “oral wills”).
Florida Trust Requirements
General Requirements
For a trust to be effective under Florida law:
- The settlor (i.e., the person creating the trust) must actually intend to create the trust
- The settlor must have sufficient mental capacity to create the trust
- The trust must have a trustee with duties to perform
- The trust must have a definite beneficiary (subject to a few exceptions, such as charitable trusts and trusts for the care of animals)
The “definite beneficiary” requirement is satisfied if:
- The beneficiary can be ascertained at the present or in the future, or
- The trustee is empowered to choose a beneficiary
Under Florida’s Trust Code, the same individual cannot be both the sole trustee and sole beneficiary of a trust.
Trust Creation Methods
A Florida trust is created when:
- The owner of property declares that he or she is holding that property as trustee, or
- The owner transfers the property to a third party to hold as trustee, or
- The owner exercises a power of appointment in favor of a trustee
Trust Purposes
A trust can serve just about any purpose, as long as the purpose is:
- Not unlawful
- Not contrary to public policy
- Not impossible to achieve
To the extent a trust is created or amended as a result of fraud, duress, mistake, or undue influence, the trust is void—either wholly or in part.
Written vs. Oral Trusts
In general, a Florida trust does not have to be evidenced by a written instrument, and oral trusts can be valid under the Florida Trust Code. However, the terms of an oral trust must be established by clear and convincing evidence, and other statutes may necessitate a written instrument, depending on the trust’s purpose.
For example:
- Trusts that involve interests in real estate must be made in writing
- Trusts with “testamentary aspects” (i.e., provisions relating to disposition of property after death) must satisfy all formalities required for creation of wills
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Special Considerations
Non-Probate Transfers
Summary Administration
Streamlined Probate
Florida’s Probate Code allows for streamlined probate administration of estates under $75,000 in value. To apply for summary administration, an estate’s personal representative submits a petition signed by the surviving spouse (if applicable) and any beneficiaries.
If the petition is granted, the personal representative is authorized to pay creditor claims and to distribute estate assets to beneficiaries without going through the normal, longer administration process.
Income and Estate Taxes
Tax-Friendly Environment
Florida is generally considered a favorable jurisdiction for estate planning in part because Florida has no state-level income or estate taxes. Federal estate taxes may still be owed, though.
Electronic Wills
Digital Execution Option
Beginning in 2020, Florida’s Probate Code began allowing “electronic wills” witnessed via online audio/video conference under a notary’s supervision.
The electronic wills statute includes multiple security provisions intended to avoid fraud and confirm a testator’s mental capacity, especially when vulnerable individuals are involved.
Records relating to electronic wills must be securely preserved by an individual or entity meeting all statutory requirements to serve as a “qualified custodian.”
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Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Florida Special Feature | Electronic wills; strict compliance requirements; 30% spousal elective share | Oral trusts; Lady Bird deeds; summary administration under $75K |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for Florida residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences.
Florida offers unique estate planning tools that provide both flexibility and protection. The state’s electronic will provisions represent a modern approach to estate planning, while its strict compliance requirements for traditional wills emphasize the importance of proper execution.
With no state income or estate taxes, Florida provides one of the most favorable tax environments in the country for estate planning. The state’s summary administration for estates under $75,000 can significantly reduce probate complexity and expense.
Florida’s strong spousal protections, including the 30% elective share and constitutional homestead provisions, create important safeguards but also necessitate careful planning, particularly in blended families. The availability of Lady Bird deeds provides a useful alternative to transfer-on-death designations for real estate.
When any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under Florida law to ensure your estate plan takes full advantage of the state’s provisions while avoiding potential pitfalls.
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FAQs: Florida Wills and Trusts
Q: What are the requirements for a valid will in Florida?
A: A Florida will must be in writing, signed by the testator (18+ or emancipated, of sound mind), and attested by two witnesses who sign in the testator’s and each other’s presence. A notarized affidavit can make it self-proving for probate.
Q: Does Florida recognize holographic or oral wills?
A: No, Florida does not recognize holographic (handwritten) or oral (nuncupative) wills unless they meet standard witnessing requirements. Handwritten wills need two witnesses to be valid.
Q: How can I avoid probate in Florida?
A: Avoid probate with living trusts, joint tenancy or tenancy by the entireties (with right of survivorship), payable-on-death (POD) accounts, transfer-on-death (TOD) securities, or Lady Bird Deeds for real estate. Summary administration applies to estates under $75,000.
Q: What is a Lady Bird Deed in Florida?
A: A Lady Bird Deed (enhanced life estate deed) lets you retain control of real estate during your life, including the right to sell, while naming a beneficiary to inherit it upon your death without probate. Florida recognizes these as an alternative to TOD deeds.
Q: What protections do surviving spouses have in Florida?
A: Florida guarantees surviving spouses a 30% elective share of the estate (including non-probate assets) and homestead rights, preventing devise to others unless waived by agreement or deed language.
Q: Does Florida allow electronic wills?
A: Yes, since 2020, Florida permits electronic wills witnessed via audio/video under a notary’s supervision, with security measures and a qualified custodian to prevent fraud and ensure validity.
