When it comes to planning your estate in Florida, one of the most frequent questions people ask is: “Do I need a Will, a Living Trust — or both?”
The short answer? It depends on your personal situation, goals, and the complexity of your estate.
This OVERVIEW will help a Florida resident understand the difference between these essential legal tools and when each might be right for them. However, remember: every family is different. For personalized guidance, consult a qualified Florida estate planning attorney.
What Is a Will?
A Last Will and Testament is a legal document that outlines your wishes regarding:
- Who inherits your property after you die,
- Who should serve as guardian of your minor children,
- Who should serve as the personal representative (executor) of your estate.
Without a valid Will, Florida’s intestacy laws will determine how your assets are divided, and it may not be what you intended. A Will only becomes effective after your death and must go through probate, which is the court-supervised process of administering your estate.
Think of a Will as answering the questions: Who gets what, when, and how — after I pass away?
What Is a Living Will (Advance Directive)?
A Living Will is a completely different document. It expresses your medical wishes in advance, in the event you are incapacitated and unable to speak for yourself; for example, if you are in a coma or facing a terminal condition.
In Florida, Living Wills are part of a broader set of documents called advance directives, which may include:
- Designation of Health Care Surrogate (Medical Power of Attorney).
- Living Will.
- Do Not Resuscitate Order (DNR), when applicable.
These documents ensure that your preferences are known and respected, and they help relieve your loved ones of the burden of making life-or-death decisions without guidance.
What Is a Living Trust?
A Living Trust (also called a Revocable Living Trust) is a legal arrangement where you transfer ownership of your assets to a trust during your lifetime. You typically serve as the Trustee, managing your assets as usual, with a successor Trustee named to take over upon your death or incapacity.
Unlike a Will, a properly funded Living Trust:
- Avoids probate entirely.
- Keeps your affairs private (unlike probate, which is public).
- Allows for ongoing management of assets in case of incapacity.
- Provides for detailed distribution instructions, including age-based or conditional distributions to beneficiaries.
Wills vs. Trusts: What is the Difference?
| Feature | Will | Living Trust |
|---|---|---|
| Effective | After death | As soon as it is signed and funded |
| Covers all assets? | Yes, if listed | Only assets titled in the trust name |
| Goes through probate? | Yes | No |
| Private? | No – public record | Yes |
| Names guardians for minor children? | Yes | No |
| Manages incapacity? | No | Yes, through successor trustee |
| Tax planning opportunities? | Limited | More flexible options |
When Might a Trust Be a Better Option in Florida?
While most people need a Will, not everyone needs a Trust. However, a Living Trust may be the better choice if:
- You want to avoid probate and keep your estate private.
- You own property in multiple states (which could otherwise require multiple probate cases).
- You have young children, and you want to control when and how they receive their inheritance.
- You are in a blended family, and you want to protect children from a prior relationship.
- You have a high net worth or are concerned about estate taxes.
- You or a beneficiary may become incapacitated, disabled or need asset protection.
Florida-Specific Example: How a Trust Works
Example 1:
Maria and John live in Florida and have two children under the age of 10. They have saved diligently and now have a home, life insurance, and investment accounts totaling $1.2 million. They create a Living Trust to:
- Ensure their assets go to one another first, and then to their children.
- Delay distributions to their children until ages 25 and 35.
- Allow the Trustee to make early distributions for education or emergencies.
This arrangement gives them peace of mind that their children will be financially supported but not overwhelmed by sudden wealth at a young and possibly immature age.
Example 2:
Sarah is remarried with adult children from a prior marriage. She is concerned that if she passes first, her spouse might redirect assets away from her children. Her Trust allows her to:
- Provide income to her spouse during his lifetime.
- Ensure the remaining assets are preserved for her children.
- Minimize future disputes and court involvement.
So, Do You Need a Will or a Trust?
In Florida, the answer depends on your family situation, financial picture, and estate planning goals. For many, a Will is sufficient — especially for smaller estates or straightforward wishes. Others benefit from the flexibility, privacy, and control that a Living Trust provides.
In some cases, you may need both. A comprehensive estate plan often includes:
- A Last Will and Testament-usually a Pour-Over if a Trust is involved.
- A Revocable Living Trust.
- A Living Will / Advance Directive.
- A Durable Power of Attorney.
- A Designation of Health Care Surrogate.
The foregoing is a brief and general overview of the topic and the need for specific and experienced legal and tax advice is emphasized.
Get Peace of Mind With a Florida Estate Planning Attorney
At CASERTA & SPIRITI in Miami Lakes, we help individuals and families across Florida create tailored estate plans that reflect their values, protect their assets, and provide clarity for loved ones.
Let us help you decide whether a Will, a Living Trust, or a combination of both is right for you.
Schedule a consultation today to begin your estate planning with confidence.