A guide to wills and living trusts in Florida

A will takes effect only at death, and only through probate. The court follows the will as its instructions, so property that passes under a will is still subject to probate. A will also does not control accounts and policies that pass by beneficiary designation.

A notary is not required for the will to be valid, but a self-proving affidavit signed before a notary allows the court to accept the will without locating the witnesses. Florida does not accept unwitnessed handwritten wills or oral wills. A will that was valid in the state where it was signed is generally valid in Florida, unless it was an unwitnessed handwritten will or an oral will.

• You usually serve as your own trustee, the person who manages the trust, and keep full control, including the right to change or revoke the trust.
• A successor trustee you choose takes over if you become incapacitated or pass away, without a court proceeding.
• The trust's terms stay private, while a will filed in a probate case becomes part of the court record.
• Distributions can be spread over time, held for young beneficiaries, or managed for a family member who needs help with money.

In Florida, the provisions of a revocable trust that take effect at death must be signed with the same formalities as a will, including two witnesses.

• A will may be enough when your home can pass by Lady Bird deed, your accounts have current beneficiary designations, and your family situation is straightforward.
• A trust is often the better choice when you own real estate in another state, which would otherwise need a separate probate case there.
• A trust can help a blended family provide for a surviving spouse while preserving an inheritance for children from a prior relationship.
• A trust lets you control how and when beneficiaries receive an inheritance.
• A trust lets a successor trustee manage your assets if you become incapacitated.

• Real estate is transferred by a deed recorded in the county where the property is located.
• Bank and brokerage accounts are retitled into the trust or given a payable-on-death or transfer-on-death designation to the trust.
• Retirement accounts usually stay in your name. Their beneficiary designations are reviewed separately, because naming a trust can change how the account is taxed after death.
• Life insurance beneficiary designations are coordinated with the plan.

An unfunded trust is one of the most common estate planning problems. Assets left outside the trust may still require probate.

Property that passes under a pour-over will still goes through probate before it reaches the trust, which is why careful funding matters. The pour-over will also names a personal representative and, where needed, a guardian for minor children.

If you are survived by a spouse or a minor child, Florida's constitution limits how your homestead can be left, whether by will or by trust. A surviving spouse can also claim the elective share, 30 percent of the elective estate, which includes trust assets. Plans for second marriages usually address both rules directly, often with a written waiver signed by the spouses or with trust provisions designed for them.

After a death, anyone holding the original will must deposit it with the clerk of the circuit court in the county where the person lived within 10 days of learning of the death. For most Venice residents, that is the Clerk of the Circuit Court in Sarasota County.

• A marriage or a divorce. In Florida, a divorce generally revokes provisions in favor of the former spouse, but the rest of the plan still needs review.
• The birth or adoption of a child or grandchild.
• A move to Florida, or the purchase of property in another state.
• The death or incapacity of someone you named.
• A significant change in your assets.