How a Florida revocable trust avoids probate — and where it doesn't
Property the settlor has retitled to the trustee is administered and distributed by the trustee under the trust terms, not by a personal representative. The personal representative's right of possession reaches "the decedent’s property." Fla. Stat. § 733.6071 The trust does not escape the settlor's debts, though: a revocable trust "is liable for the expenses of the administration and obligations of the decedent’s estate to the extent the decedent’s estate is insufficient to pay them." Fla. Stat. § 733.707(3)2
- Execution formalities — The provisions that dispose of property at death are "invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state." Fla. Stat. § 736.0403(2)(b)3
- Revocable by default — Under Florida's Trust Code, a trust is revocable unless its terms expressly make it irrevocable. The rule does not apply to instruments executed before the code took effect. Fla. Stat. § 736.06024
- Funding is everything — Assets left outside the trust pass under the will. A pour-over devise to the trustee is valid, but it is still a devise under the will, so those assets reach the trust only after estate administration. Fla. Stat. § 732.5135
- No lifetime creditor shield — Revocable trust property is reachable by the settlor's creditors during life, unless it would be exempt if the settlor owned it directly. Fla. Stat. § 736.0505(1)(a)6
- Paying estate shortfalls — The trustee "shall pay" whatever the personal representative certifies in writing is needed for estate expenses and obligations. It pays from gross-estate assets, after its own trust administration expenses, and in a statutory abatement order. Fla. Stat. § 736.050537; Fla. Stat. § 733.607(2)1 IRAs, qualified plans, and § 664 charitable remainder trusts are excluded. Fla. Stat. § 733.707(3)(a)–(b)2
Practice notes
- After the settlor dies, the trustee must file a notice of trust with the court in the county of the settlor's domicile. Failing to file does not excuse the trustee's payment obligation. Fla. Stat. § 736.050558
- Probate claim deadlines still matter: three months after first publication of the notice to creditors (or 30 days after service), with a two-year outside bar from death. Fla. Stat. § 733.7029; Fla. Stat. § 733.71010