What Is a Testamentary Trust in Florida?

Florida law recognizes several ways to create a trust. One is a transfer of property to a trustee during the settlor's lifetime, and another is a transfer by will taking effect on the settlor's death.

Because the trust is part of the will, the will's formalities apply. A Florida will must be in writing and signed by the testator at the end, and the testator must sign or acknowledge the signature in the presence of at least two attesting witnesses, who sign in the presence of the testator and of each other.

The trust depends on probate. Until a will is admitted to probate in Florida or in the state where the decedent was domiciled, it is ineffective to prove title to, or the right to possession of, the testator's property.

A gift to an existing trust works differently. A will may leave property to the trustee of a trust that is evidenced by a written instrument already in existence, or signed at the same time as the will, if the will identifies it. Unless the will provides otherwise, that property is not held under a testamentary trust but becomes part of the principal of the existing trust.

The Florida Trust Code applies to express trusts and lists creation by will among the methods of creating a trust. The gift to an existing trust approach is explained in pour over wills in Florida.