The choice between probate and a revocable living trust is one of the most significant decisions in Florida estate planning. This choice affects how quickly your beneficiaries receive assets, how much the process costs, whether your estate remains private, and how complex administration becomes.
Both approaches accomplish the same fundamental goal: transferring your assets to beneficiaries after death. They differ dramatically in process, cost, timing, and privacy.
This guide provides a comprehensive comparison to help you understand which approach fits your situation.
Understanding the Fundamental Difference
Probate is the court supervised process of transferring assets titled in your name at death. The court appoints a personal representative, validates your will (or applies intestacy laws if you die without one), resolves creditor claims, and oversees distribution to beneficiaries.
A revocable living trust is a legal entity you create during life that holds title to your assets. You maintain complete control as trustee while living. Upon death, your successor trustee distributes assets according to the trust terms without court involvement.
The core distinction: probate requires court supervision while trust administration happens privately outside court.
What Gets Probated vs What Avoids Probate
Understanding what triggers probate is essential.
Assets that require probate:
- Real property titled solely in your name
- Bank accounts and investment accounts in your name alone without beneficiary designations
- Vehicles titled in your name
- Personal property (furniture, jewelry, collectibles) owned by you
- Business interests in your name
Assets that avoid probate:
- Property titled in your revocable trust
- Jointly owned property with right of survivorship
- Accounts with valid beneficiary designations (retirement accounts, life insurance, payable on death accounts)
- Property owned as tenants by entirety (married couples in Florida)
- Assets transferred through transfer on death deeds
The probate vs trust decision primarily concerns the first category: individually owned assets without beneficiary designations.
People often think probate is universally bad and trusts are universally good. Reality is more nuanced. For modest estates with simple family situations, probate can be straightforward and cost effective. For larger estates, multiple properties, or complex family dynamics, trusts typically provide significant advantages. The right answer depends on your specific circumstances.
The Florida Probate Process
Understanding how probate actually works in Florida clarifies why many people seek to avoid it.
Types of Florida Probate
Florida offers several probate procedures depending on estate size and circumstances.
Formal Administration
Required for estates exceeding $75,000 or when the deceased has been dead less than two years. This is full probate with court supervision.
The process involves:
- Filing petition with probate court
- Court appointment of personal representative
- Notice to creditors published in newspaper
- Inventory and appraisal of estate assets
- Payment of valid creditor claims
- Filing accountings with court
- Petition for distribution to beneficiaries
- Final discharge of personal representative
Summary Administration
Available for estates under $75,000 or when the deceased has been dead more than two years regardless of estate size. This is simplified probate with less court involvement.
Summary administration is faster and cheaper than formal administration but still requires court filing, attorney involvement, and public disclosure.
Disposition Without Administration
Available only for very small estates where estate assets are limited to funeral expenses and final medical bills. This is rare in practice.
Timeline for Formal Administration
Florida statutes suggest probate should close within one year. Reality often differs.
Typical timeline:
Initial Filing and Appointment
Petition filed with court, personal representative appointed, notice to creditors published. Letters of administration issued allowing personal representative to act.
Asset Inventory and Creditor Claims
Personal representative inventories all estate assets, obtains appraisals if needed. Three month creditor claim period runs from notice publication. Valid claims must be paid.
Estate Administration
Personal representative manages estate assets, resolves any disputes, files required accountings with court, handles tax filings if necessary, prepares for distribution.
Distribution and Closing
Petition for discharge and distribution filed with court. Court approves distribution plan. Assets distributed to beneficiaries. Personal representative discharged. Estate closed.
Contested estates, significant creditor issues, or tax complications extend this timeline significantly. Some probates remain open for years.
Personal Representative Responsibilities
The personal representative (executor) has substantial duties and potential liability.
Responsibilities include:
- Locating and securing all estate assets
- Providing notice to beneficiaries and creditors
- Managing estate assets during administration
- Paying valid debts and expenses
- Filing required tax returns
- Maintaining detailed records and accountings
- Distributing assets to beneficiaries
- Defending the estate in litigation if challenges arise
Personal representatives can be held personally liable for mistakes. Most hire attorneys to navigate the process.
How Revocable Trusts Work
Revocable living trusts operate fundamentally differently from probate.
Trust Creation and Funding
You create a trust by executing a trust agreement that establishes the trust terms and names trustees and beneficiaries. You typically serve as initial trustee with complete control over trust assets.
Creating the trust document alone accomplishes nothing. The trust must be funded by transferring asset titles from your individual name to the trust.
Funding involves:
- Deeding real property to the trust
- Retitling bank and investment accounts to the trust
- Transferring business interests to the trust
- Assigning other valuable property to the trust
Unfunded trusts provide no probate avoidance benefit. The assets still titled in your name go through probate.
Living with a Revocable Trust
While you serve as trustee, you maintain complete control. You can:
- Buy, sell, or transfer trust assets freely
- Amend the trust terms
- Revoke the trust entirely
- Add or remove assets
- Change beneficiaries
Revocable trusts provide no asset protection during your lifetime. Creditors can reach trust assets just as if you owned them individually. The trust is transparent for tax purposes: you report all income on your personal tax return.
The trust becomes irrevocable upon your death.
Trust Administration After Death
When you die, your successor trustee takes over without court involvement.
The successor trustee:
- Takes control of all trust assets
- Notifies beneficiaries of the trust and their rights
- Obtains tax identification number for the trust
- Values trust assets as of date of death
- Pays valid debts and expenses
- Files required tax returns
- Distributes assets to beneficiaries according to trust terms
- Provides accountings to beneficiaries
- Winds up the trust
This happens privately without court supervision. No court filings are required unless disputes arise.
Pour Over Wills
Even with a revocable trust, you still need a will. The "pour over" will catches any assets not transferred to the trust during life and directs them into the trust through probate.
If you properly fund your trust, the pour over will probates only minimal assets (recent inheritance, refund check received after death). If you fail to fund the trust, everything goes through probate despite having the trust.
The Funded Trust Requirement
Creating a trust without funding it is one of the most common estate planning mistakes. The trust provides no probate avoidance for assets still titled in your individual name.
Funding requires actively retitling assets to the trust. Many people create trusts but never complete funding, defeating the entire purpose.
Cost Comparison: Probate vs Trust
Cost considerations significantly influence the probate vs trust decision.
Probate Costs
Florida probate involves several categories of costs.
Attorney Fees
Personal representatives typically hire attorneys. Florida statutes provide presumptively reasonable attorney fee schedules based on estate value:
- 3% on the first $1 million
- 2.5% on amounts above $1 million up to $3 million
- 2% on amounts above $3 million up to $5 million
- 1.5% on amounts above $5 million up to $10 million
- 1% on amounts above $10 million
Additional fees apply for extraordinary services like litigation, tax matters, or business valuations.
For a $500,000 estate, presumptive attorney fees are $15,000. For a $2 million estate, fees are $55,000.
Personal Representative Fees
Personal representatives are entitled to compensation using the same schedule as attorney fees. Family members sometimes waive these fees, but professional personal representatives expect payment.
Court Filing Fees and Costs
Court filing fees, publication costs for creditor notice, certified copies, and other administrative costs typically run $1,000 to $3,000 depending on estate complexity.
Appraisal and Accounting Fees
Real property appraisals, business valuations, and accounting services add additional costs for many estates.
Total Probate Costs
Total probate administration typically costs 3% to 7% of gross estate value. A $500,000 estate might cost $20,000 to $35,000 to probate. A $2 million estate might cost $70,000 to $140,000.
Trust Costs
Trust based estate planning involves different cost structure.
Initial Trust Creation
Attorney fees for creating a comprehensive trust based estate plan (revocable trust, pour over will, healthcare directives, powers of attorney) typically range from $3,000 to $8,000 depending on complexity.
Simple trusts for straightforward situations cost less. Complex trusts with sophisticated tax planning or special needs provisions cost more.
Funding Costs
Transferring assets to the trust involves costs. Real estate transfers require new deeds (typically $300 to $1,000 per property including recording fees). Retitling accounts is usually free but takes time.
Trust Administration Costs
After death, successor trustees often hire attorneys to guide administration. Attorney fees for trust administration are negotiable and typically much lower than probate fees.
Trust administration fees typically range from $5,000 to $20,000 depending on estate complexity, compared to statutory probate fees of $20,000 to $140,000+ for similarly sized estates.
Successor Trustee Fees
Successor trustees are entitled to reasonable compensation. Family member trustees often waive fees. Professional trustees charge based on asset value (typically 1% to 2% annually for ongoing management, less for distribution only administration).
Break Even Analysis
The cost comparison favors trusts for most estates over $200,000.
Example for $750,000 estate:
Probate costs: $30,000 to $50,000 (attorney fees, personal representative fees, court costs)
Trust costs: $5,000 (initial creation) + $3,000 (funding) + $10,000 (administration) = $18,000 total
Net savings with trust: $12,000 to $32,000
For smaller estates under $200,000, the upfront trust creation cost may exceed probate savings, especially if using summary administration.
Timeline Comparison
Time to distribution differs dramatically between probate and trusts.
Probate Timeline
As discussed earlier, formal probate typically takes 8 to 12 months minimum. Complex estates remain in probate for years.
Beneficiaries cannot receive assets until probate closes. Even obvious distributions get delayed by the creditor claim period (minimum three months) and court approval requirements.
Summary administration is faster (typically 3 to 6 months) but still requires court involvement and attorney representation.
Trust Timeline
Trust administration timing depends on complexity but rarely involves court imposed delays.
Simple trust with liquid assets and clear beneficiaries might distribute within 60 to 90 days. More typical timeline is 4 to 6 months for complete administration including:
- Beneficiary notification
- Asset valuation
- Debt payment
- Tax return preparation
- Distribution to beneficiaries
Trustees can make partial distributions while retaining reserves for final expenses and taxes. Beneficiaries receive funds faster than in probate.
Interim Distributions
Trusts allow flexibility for interim distributions that probate does not. Successor trustees can distribute specific assets or make partial distributions while retaining sufficient assets for final expenses.
Probate courts rarely approve interim distributions. Beneficiaries wait until final court approval.
Privacy Considerations
Privacy differences between probate and trusts are substantial.
Probate is Public
Probate files are public court records. Anyone can access:
- Your will and all provisions
- Inventory of all assets and values
- List of all beneficiaries and what they receive
- Creditor claims filed
- All accountings showing income, expenses, and distributions
- Any disputes or litigation
Creditors, disgruntled family members, scammers, and anyone else interested can review your entire estate and family situation.
Published creditor notices in newspapers announce your death and estate administration, alerting potential creditors and predators.
Trusts are Private
Trust administration happens entirely outside court. Nothing is public record unless litigation forces court involvement.
Only the trustee and beneficiaries know:
- Trust terms and provisions
- Trust assets and values
- Distribution plans
- Family dynamics addressed in trust
This privacy protects family information from public scrutiny and reduces targeting by creditors or scammers.
When Privacy Matters Most
Privacy considerations are particularly important for:
- High net worth individuals who prefer private financial affairs
- Families with complicated dynamics they want kept confidential
- Blended families with unequal distributions among children
- Estates with disinherited family members
- People who simply value privacy in personal matters
Privacy is underrated in estate planning discussions. People focus on cost and speed, but many clients care deeply about keeping family financial information private. The trust provides that privacy where probate cannot.
Complexity and Administration
The administrative complexity differs significantly between probate and trusts.
Probate Complexity
Probate involves more formal procedures and court oversight.
Required court filings:
- Petition for administration
- Oath of personal representative
- Notice to creditors
- Inventory of estate assets
- Accountings showing all transactions
- Petition for discharge and distribution
Notice requirements:
- Formal notice to all beneficiaries
- Published notice to creditors
- Notice to known creditors
- Notice of any hearings or significant actions
Court approval required for:
- Appointing personal representative
- Selling real property (in many cases)
- Final distribution plan
- Discharge of personal representative
Personal representatives face potential personal liability for errors. This drives most to hire attorneys even for relatively simple estates.
Trust Administration Complexity
Trust administration involves less formality but requires diligent record keeping.
No court filings required unless disputes arise. Trustees act without court approval.
Notice to beneficiaries required under Florida law. Trustees must inform beneficiaries of the trust, their rights, and provide accountings upon request.
Record keeping requirements:
- Detailed records of all trust assets
- Documentation of all transactions
- Records of distributions to beneficiaries
- Tax returns and supporting documentation
Trustees have fiduciary duties to beneficiaries but act independently without court supervision. This flexibility allows faster, more efficient administration but places greater responsibility on the trustee.
Dispute Resolution
Both probate and trust administration can face disputes.
Probate disputes occur within the court proceeding. The judge resolves objections to the will, disputes about asset distribution, or challenges to personal representative actions.
Trust disputes typically require separate litigation. Beneficiaries must file suit to challenge trust terms or trustee actions. This can be more expensive than probate disputes but maintains privacy (litigation can proceed with sealed records).
When Probate Makes Sense
Despite advantages of trusts, probate is appropriate in many situations.
Small Estates
For estates under $75,000 qualifying for summary administration, probate is simple and inexpensive. The cost of creating and funding a trust may exceed probate costs.
Florida summary administration typically costs $3,000 to $5,000 in attorney fees plus minimal court costs. Trust creation costs similar amounts, and you still need trust administration after death.
Simple Family Situations
If you have straightforward estate (everything to spouse, then to adult children equally) with cooperative family members, probate works fine. The process is predictable and the cost is proportional to estate size.
Limited Assets Subject to Probate
Many people have most assets passing outside probate through beneficiary designations, joint ownership, or survivorship arrangements. If probatable assets total $50,000 to $100,000, summary administration handles it efficiently.
Need for Court Supervision
Some situations benefit from court oversight:
- Concerned about personal representative mismanagement (court monitors through required accountings)
- Complicated creditor situations where court supervised creditor claim process provides protection
- Family conflict where court can resolve disputes authoritatively
- Minor beneficiaries where court approval of distributions provides protection
No Capacity for Trust Administration
Creating and funding a trust requires mental capacity. If you are elderly or impaired and did not create a trust earlier, probate may be the only option.
When Trusts Make Sense
Revocable trusts provide significant advantages in many common situations.
Real Property in Multiple States
If you own property in multiple states, each state requires separate probate (called ancillary probate). This multiplies costs and delays.
Property titled in your revocable trust avoids probate in all states. This is particularly valuable for vacation homes, rental properties, or investment real estate in other states.
Privacy Concerns
If privacy matters to you, trusts provide it and probate does not. High net worth individuals, those with complicated family situations, and people who simply value privacy benefit from trust administration.
Estate Size Over $200,000
For most estates over $200,000, trust savings exceed trust creation costs. The larger the estate, the more dramatic the savings become.
A $2 million estate might cost $70,000 to $140,000 to probate but only $20,000 to $30,000 to administer through a trust.
Speed to Distribution
If getting assets to beneficiaries quickly matters, trusts accomplish this much faster than probate. Beneficiaries can receive distributions in months rather than waiting a year or more.
Incapacity Planning
Revocable trusts provide seamless incapacity planning. If you become unable to manage your affairs, your successor trustee takes over immediately without court involvement.
Without a trust, incapacity triggers guardianship proceedings. The court appoints a guardian to manage your property, which is expensive, public, and involves ongoing court supervision.
Business Interests
If you own business interests, keeping them out of probate allows continuation without court approval for business decisions during administration. This prevents disruption and maintains business value.
Blended Families
Trusts provide flexibility for blended family situations where you want to provide for a surviving spouse while ensuring children from a prior marriage ultimately inherit.
Trust provisions can give your spouse lifetime benefits while preserving principal for your children. Probate offers limited flexibility for these arrangements.
Special Needs Beneficiaries
If beneficiaries receive government benefits, trusts can provide supplemental support without disqualifying them from benefits. Probate distributions might disrupt benefits eligibility.
Avoiding Family Conflict
Trusts reduce opportunities for family conflict. The private nature prevents disputes fueled by public information. Distribution happens faster, giving less time for disputes to develop.
The Incapacity Planning Advantage
One often overlooked trust benefit is incapacity planning. If you become mentally incapacitated without a trust, someone must petition the court for guardianship over your property. This is expensive (typically $5,000 to $10,000), public, and subjects your finances to ongoing court supervision.
With a funded revocable trust, your successor trustee simply takes over. No court involvement, no public proceeding, no guardianship expense. This alone can justify trust creation for many people.
Professional or High Profile Individuals
Doctors, lawyers, business owners, and others with high public profiles often prefer trusts to keep their estate information out of public records where clients, competitors, or media might access it.
Charitable Planning
Trusts provide flexibility for sophisticated charitable planning that probate cannot match. You can structure charitable distributions over time, create charitable remainder arrangements, or establish ongoing philanthropic legacies.
The trust versus probate decision is not one size fits all. I have clients with significant estates who are perfectly comfortable with probate because their situations are simple and family dynamics are good. I have other clients with modest estates who deeply value privacy or have complicated family situations where the trust makes sense despite higher upfront costs. The right answer depends on your specific circumstances and priorities.