If you’re starting your estate planning journey, you’ve likely asked yourself: Do I need a will or a trust? Understanding the difference between these two essential legal tools can make all the difference when it comes to protecting your assets, avoiding probate, and ensuring your wishes are honored.
This guide will walk you through the key distinctions between a Last Will and Testament and a Revocable Living Trust, so you can make informed decisions that support your family’s future.
What is a Last Will and Testament?
A Last Will and Testament is a legal document that outlines how you want your assets to be distributed after your death. It also allows you to:
- Appoint guardians for your minor children
- Name an executor to carry out your wishes
- Specify gifts to individuals or charities
However, a major downside to relying solely on a will is probate—the court-supervised process that validates the will and oversees asset distribution. Probate in Florida can be expensive, time-consuming, and public. Once filed, your will becomes a matter of public record, which means anyone can access it.
If you pass away without a valid will, Florida intestacy laws will determine how your assets are divided—often in a way that may not reflect your wishes.
What is a Trust?
A Revocable Living Trust is a legal arrangement that holds your assets during your lifetime and distributes them according to your instructions after your death. Unlike a will, a trust can also manage your affairs if you become incapacitated, eliminating the need for court intervention.
Here’s how it works:
- You (the grantor) create the trust and usually serve as your own trustee during your lifetime.
- You title your assets (bank accounts, real estate, investments) in the name of the trust. This is called funding the trust.
- Upon your death or incapacity, your named successor trustee steps in to manage and distribute the assets.
Trusts are more complex to set up initially, but they offer key advantages:
- Avoid probate entirely (if properly funded)
- Maintain privacy—unlike wills, trusts are not filed with the court
- Plan for incapacity without needing a guardianship or conservatorship
A trust must be properly funded to be effective. Any assets left out of the trust may still be subject to probate, so it’s crucial to ensure everything is correctly titled.
Wills vs. Trusts: A Side-by-Side Comparison
| Feature | Will | Trust |
|---|---|---|
| Goes through probate? | Yes | No (if properly funded) |
| Becomes public? | Yes | No |
| Effective when? | After death | Immediately, during life and after death |
| Incapacity planning? | No | Yes |
| Cost to set up? | Lower upfront cost | Higher upfront cost |
| Asset control? | Simple distribution upon death | Ongoing control and flexibility |
How to Decide Between a Will and a Trust
Choosing between a will and a trust depends on your personal and financial situation:
- Do you own real estate in multiple states?
- Do you want to avoid probate and keep your estate private?
- Are you concerned about incapacity or long-term asset protection?
- Do you have minor children who need guardianship planning?
These are just a few factors an experienced estate planning attorney will help you evaluate. In many cases, an estate plan will include both a will and a trust, along with other essential documents like powers of attorney and healthcare directives.
Final Thoughts: Work with an Experienced Florida Estate Planning Attorney
Whether you’re creating your first estate plan or updating an existing one, the guidance of a qualified attorney is essential. At our firm, we’ll help you:
- Understand whether a will or trust is better for your goals
- Ensure all documents are legally valid and up to date
- Avoid common probate pitfalls
- Protect your privacy and your loved ones’ inheritance
Call us at 727-223-6080 to schedule your estate planning consultation.
We will design a plan that gives you peace of mind and safeguards your legacy.
By: Allison Couri, Esq.