Florida Living Trust

Introduction

Key Things to Know

1. 1

   Florida's sharpest trap: Fla. Stat. Section 736.0403(2)(b) makes the trust's death-time terms, the provisions that say who inherits, invalid unless the settlor signed at the end of the instrument in the presence of two attesting witnesses who sign in the settlor's presence and each other's presence, the same formalities Section 732.502(1) requires for a will. Notarization is not required for validity but is standard practice. Section 736.0602(3) extends the same two-witness rule to any later amendment that changes who takes at death; an initialed or unwitnessed change is a nullity even if the original trust was signed perfectly.

2. 2

   Florida's homestead devise restriction is constitutional and reaches through the trust. If the settlor dies survived by a spouse or minor child, Article X, Section 4(c) voids whatever the trust directs for the home, and Fla. Stat. Sections 732.4015(2) and 736.1109(1) redirect title to a spousal life estate with a vested remainder in the descendants, or an undivided one-half interest on a timely election. No trust drafting can waive this unilaterally, and Section 732.4017's escape hatch does not apply to a revocable trust because it requires giving up the power to revoke.

3. 3

   Funding Florida real estate into the trust means a deed signed in the presence of two subscribing witnesses (Fla. Stat. Section 689.01(1)), acknowledged before a notary for recording (Section 695.03), and taxed at a fixed rate, which does not adjust for inflation, of 70 cents per $100 of consideration (60 cents plus a surtax in Miami-Dade). Section 201.02(1)(a) has no estate-planning exemption, and an outstanding mortgage balance is taxable consideration whether or not the trustee assumes the debt.

4. 4

   A Florida living trust never sees a courthouse while the settlor is alive, but Fla. Stat. Section 736.05055 requires the trustee to file a public Notice of Trust with the circuit court of the settlor's domicile when the settlor dies, disclosing only the settlor's name, date of death, the trust's title and date, and the trustee's name and address. The dispositive terms stay private, but the trust's existence becomes a court record.

5. 5

   Florida's spousal elective share reaches revocable trust assets outright under Fla. Stat. Section 732.2035(5), and Section 732.2065 sets a flat 30 percent with no sliding scale for length of marriage. Florida's elective estate is one of the broadest in the country, also sweeping in protected homestead, payable-on-death accounts, and property in which the settlor kept income or use, so a living trust cannot be used to disinherit a Florida spouse.

6. 6

   A revocable living trust gives no asset protection in Florida while the settlor is alive. Fla. Stat. Section 736.0505(1)(a) subjects trust property to the settlor's creditors the same as property owned outright, and Section 736.0505(1)(b) confirms Florida has no domestic asset protection trust statute. After death, Section 733.710 gives an absolute two-year bar on creditor claims, and Section 736.0604 closes the window to contest the trust's validity six months after the trustee sends a copy of it.

7. 7

   Florida has no estate or inheritance tax at any value (Fla. Const. Art. VII, Section 5(a); Fla. Stat. Section 198.02), and a trust created on or after July 1, 2022 can run for up to 1,000 years under Florida's perpetuities statute (Section 689.225(2)(g)), a fact most secondary sources still misreport as 360 years. That long period matters to what the living trust pours into for children and grandchildren; the revocable trust itself is unaffected until the settlor's death.

Florida Requirements for Living Trust

• Florida Will-Formalities Execution for the Trust's Death-Time Terms

  Fla. Stat. Section 736.0403(2)(b) makes the trust's testamentary provisions invalid unless the settlor signs at the end of the instrument in the presence of two attesting witnesses who sign in the presence of the settlor and each other, the formalities Section 732.502(1) requires for a will. Section 736.0602(3) applies the same rule to amendments.

• Florida Funding Deed: Two Witnesses Plus Notary Acknowledgment

  A deed conveying Florida real property to the trustee must be signed in the presence of two subscribing witnesses (Fla. Stat. Section 689.01(1)) and acknowledged before a notary for recording (Section 695.03), and is taxed at a fixed rate, not adjusted for inflation, of 70 cents per $100 of consideration, with no estate-planning exemption (Section 201.02(1)(a)).

• Florida Homestead Devise Restriction Overrides Trust Terms

  Article X, Section 4(c) of the Florida Constitution voids a trust's homestead disposition if the settlor is survived by a spouse or minor child, redirecting title under Fla. Stat. Sections 732.4015(2) and 736.1109(1) to a spousal life estate with a vested remainder in the descendants.

• Florida Notice of Trust Filed With the Court at Death

  Fla. Stat. Section 736.05055 requires the trustee to file a Notice of Trust with the circuit court of the settlor's domicile upon the settlor's death, disclosing the trust's existence and the trustee's identity while keeping the dispositive terms private.

• Florida Certificate of Trust

  Fla. Stat. Section 736.1017 lets the trustee furnish a certification of trust to a bank, title company, or other third party in place of the full instrument, without disclosing the dispositive terms.

• Florida Spousal Elective Share Reaches Revocable Trust Assets

  Fla. Stat. Section 732.2035(5) includes revocable trust property in the elective estate, and Section 732.2065 sets a flat 30 percent elective share regardless of length of marriage, one of the broadest elective estates in the country.