Why Florida Beneficiaries May Still Face Probate—Even When a Trust Exists

Many people set up a Trust to avoid probate, thinking their loved ones won’t have to deal with the court process after they pass away. But in Florida, even if a decedent had a Trust in place, their beneficiaries may still have to go through probate under certain circumstances. Understanding why this happens and how to minimize the risk of probate is crucial for effective estate planning.

What is Probate, and Why Do People Want to Avoid It?

Probate is the legal process that settles a deceased person’s estate. It involves:

• Validating the Will (if one exists)
• Identifying and gathering assets
• Paying debts, taxes, and expenses
• Distributing remaining assets to beneficiaries

Probate can be time-consuming, costly, and stressful for loved ones. Many Floridians use revocable living Trusts to keep assets out of probate and ensure a smooth transition of wealth. However, a Trust doesn’t always guarantee a probate-free process.

Why Would a Trust Still Require Probate in Florida?

Even when someone establishes a Trust, probate may still be required in Florida for the following reasons:

1. Not All Assets Were Properly Titled in the Trust

One of the most common reasons probate is needed is failure to fully fund the Trust. If assets were not retitled in the name of the Trust before the decedent passed away, those assets are still legally owned by the individual—not the Trust.

For example:

• If a person creates a Trust but forgets to transfer real estate, bank accounts, or investment accounts into the Trust’s name, those assets will have to go through probate before they can be distributed.
• Certain assets, like vehicles or personal property, are often overlooked in the funding process.

2. The Pour-Over Will Needs to Be Probated

Many estate plans include a pour-over Will, which directs any remaining assets not already in the Trust to be transferred into it after death. But here’s the catch—if assets are left out of the Trust and exceed Florida’s probate threshold, the Will must go through probate before the assets can be moved into the Trust and then distributed to beneficiaries.

3. Creditors Need to Be Paid

Even if most of a decedent’s assets are in a Trust, probate may still be necessary to handle outstanding debts. Florida law requires that:

• Creditors be given an opportunity to make claims against the estate.
• Any valid debts be paid before distributions are made to beneficiaries.

If there are substantial debts, even if there is nothing to probate, a probate process may be required to ensure debts are paid from the decedent’s assets before distributions occur.

4. Legal Challenges or Disputes

Sometimes, family members or other parties challenge a Trust’s validity. Common legal disputes that can trigger probate include:

• Allegations of undue influence (where someone claims the decedent was pressured into creating the Trust).
• Questions about the decedent’s mental capacity when the Trust was created.
• Claims that a later Will or Trust amendment should override an earlier version.

If a judge determines that the Trust is invalid or incomplete, assets may need to go through probate under Florida’s intestacy laws or an existing Will.

5. Homestead Property May Still Need Probate

In Florida, a homestead property (a primary residence with certain legal protections) is a unique asset that doesn’t always follow standard Trust rules.

• If a Trust does not properly address the homestead property, or if the homestead is devised in a way that violates Florida law, probate may be needed to ensure it passes correctly to heirs.

6. The Trust Was Created Incorrectly or Is Outdated

Errors in drafting, improper execution, or failing to update a Trust to reflect major life changes (like marriages, divorces, births, or deaths) can cause issues that require probate to resolve.

For example:

• If a Trust was not properly witnessed or notarized, Florida courts may not recognize it as valid.
• If the named Trustee is deceased and no successor Trustee is listed, court intervention may be needed.

How to Avoid Probate When Using a Trust in Florida

To ensure that a Trust works as intended and avoids probate, consider these best practices:

✔ Fully fund the Trust – Ensure all assets are properly retitled in the Trust’s name. This includes bank accounts, real estate, vehicles, and other high-value property.

✔ Use beneficiary designations – Some assets, like life insurance policies, retirement accounts, and payable-on-death (POD) bank accounts, pass directly to beneficiaries without probate. Make sure these designations align with the estate plan.

✔ Regularly review and update the Trust – Estate plans should be reviewed every few years, especially after major life changes, to ensure they still reflect the decedent’s wishes and comply with current Florida laws.

✔ Work with an experienced estate planning attorney – A knowledgeable attorney can help structure an estate plan that avoids common pitfalls and ensures the Trust functions as intended.

Final Thoughts

While a Trust is one of the best tools for avoiding probate in Florida, it isn’t foolproof. Mistakes in funding, outdated documents, or overlooked assets can still require a probate process. If you’re unsure whether your estate plan will fully bypass probate, consult with an experienced Florida estate planning attorney to make sure everything is set up correctly.

Proper planning today can save your loved ones from unnecessary stress and delays down the road.