“Do I need a trust or just a will?” is the most common question we hear from Boca Raton residents, and it usually comes loaded with a wrong assumption. The truth is most people need a will and may benefit from a trust, and the real mistakes lie in misunderstanding what each one does under Florida law. Let’s clear it up.
What a Will Does in Florida
A will is a document that directs who receives your property after death and names a personal representative to handle your estate. To be valid in Florida, it must meet the formalities of Section 732.502: signed by you and witnessed by two people. Here is the catch many people miss: a will does not avoid probate. It is your instruction manual for probate, the court-supervised process under Florida’s Probate Code (Chapters 731 through 735).
What a Trust Does
A revocable living trust, governed by Florida’s Trust Code (Chapter 736), holds your assets during life and distributes them after death without court-supervised probate, provided you actually fund it. It also provides for management of your assets if you become incapacitated. For Boca Raton residents who value privacy or own property in more than one state, that probate avoidance can be meaningful.
Mistake #1: Thinking a Will Avoids Probate
It does not. If your assets are in your individual name with no beneficiary designation and no trust, your will sends them through probate. Depending on the estate, that may be summary administration (a faster track for smaller or older estates) or formal administration (the full process). Either way, it is a court proceeding, and it is public.
Mistake #2: Assuming a Trust Replaces Everything
Even with a trust, you still need a pour-over will to catch stray assets, and you still need incapacity documents. A trust is part of a plan, not the whole plan.
Mistake #3: Overlooking the Probate Shortcuts You Already Have
Florida offers several non-probate transfer tools that work without any trust at all: payable-on-death and transfer-on-death account designations, jointly titled property, and the Lady Bird (enhanced life estate) deed for real estate. Many Boca Raton homeowners avoid probate on their home with a Lady Bird deed alone, keeping full control during life and passing the property automatically at death. For a modest estate, a will plus these tools may be all you need.
Mistake #4: Forgetting Florida Homestead and the Elective Share
Whatever you choose, Florida law limits how you can give away certain assets. Homestead protections under Article X, Section 4 restrict how you can devise your primary residence if you have a spouse or minor child, and the spousal elective share under Section 732.2065 and following guarantees a surviving spouse a portion of the estate regardless of what your documents say. A plan that ignores these rules can be partly overridden by a court.
So Which Do You Need?
Almost everyone needs a will. Whether you also need a trust depends on your privacy preferences, whether you own out-of-state property, the complexity of your family, and your incapacity concerns. There is no universal answer, only the right answer for your situation.
A note before deciding: The interplay of homestead, elective share, and probate in Florida is genuinely tricky. Sit down with a licensed Florida estate planning attorney to match the tools to your actual assets and family before committing to either path.
For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles Article 81 guardianship in New York.
