Key Takeaways
- A will and a trust are both estate planning tools — neither is universally better. The right choice depends entirely on your assets, your family situation, and your goals.
- A will only takes effect after death and requires probate court. A trust works both during your lifetime and after death, allowing assets to transfer privately without court involvement.
- Even in a trust-based estate plan, you still need a will — to catch any assets left outside the trust and to nominate a guardian for minor children.
- A well-drafted trust can adapt to future “what if” scenarios: a beneficiary who becomes disabled, gets sued, goes through a divorce, struggles with addiction, or has special needs.
- Beware of “trust mills” that sell trusts to everyone regardless of circumstances. Sometimes a will is the smarter, more cost-effective choice.
“Do I need a will or a trust?” It’s one of the most common questions estate planning attorney John Marshall hears — and it’s also one of the most misunderstood. Most people frame it as a competition: one must be better than the other, so which one wins?
The honest answer is that it’s the wrong question entirely.
On a recent episode of Trust Me, It’s Complicated, Marshall — who serves clients throughout The Villages, Wildwood, Leesburg, Lady Lake, Fruitland Park, Minneola, Sumter County, and Lake County — breaks down what a will and a trust actually are, when each one makes sense, and why the real goal isn’t picking a document — it’s building a plan that fits your life.
What a Will Actually Does (and Doesn’t Do)
Most people have a general sense of what a last will and testament is. It’s the document that says who gets your stuff when you die. That’s essentially correct — but there’s a lot more to it than that, especially in Florida.
A will is a set of instructions for how you want your estate handled after death. The key word is after. A will has no role whatsoever while you’re alive. And even after death, it doesn’t automatically go into effect — it has to go through the probate court first.
Here’s where Florida gets specific. In Ohio, a will is valid upon death. In Florida, a will isn’t legally valid until a judge issues an order saying it is. For a will to be properly executed in Florida, it must be signed by the person making it in the presence of two witnesses. But there’s an additional step that matters enormously: a self-proving affidavit.
A self-proving affidavit is an additional statement attached to the will confirming it was executed in compliance with Florida law. Without it, witnesses have to be tracked down and their testimony taken — a process that can add $2,000 to $3,000 to your estate’s costs. This is why people who move to Florida from another state need to have their wills updated. Out-of-state wills typically don’t include a self-proving affidavit and may not meet Florida’s requirements at all.
The bottom line on wills: they’re instructions to the probate court for what to do with your assets after you’re gone — and nothing more.
What a Trust Does That a Will Can’t
A trust is a fundamentally different tool. While a will only operates after death, a trust crosses what Marshall calls “the life-to-death gap.” It works while you’re alive and continues working after you die.
One way to visualize it: imagine life on one side of a river and death on the other. A will only plays on the death side. A trust is the bridge that spans both. Another helpful way to think about it — a trust is a container. It holds your assets during your lifetime and transports them across that river at death, without ever going through probate court.
That’s the big headline: because a trust exists both before and after your death, anything held inside it never enters probate. A will requires the court to oversee and carry out your instructions. A trust allows the trustee to distribute assets privately, without any court involvement.
But probate avoidance, while significant, is only part of what makes a trust powerful. The other part is flexibility — specifically, the ability to handle complex “what if” scenarios that a will simply can’t address.
Why You’ll Probably Need Both
Here’s something that surprises a lot of people: even if you have a trust, you still need a will.
In a trust-based estate plan, the will is called a pour-over will, and its primary beneficiary is the trust itself. The idea is simple: if any asset accidentally gets left out of the trust — say, a bank account you forgot about — the will instructs the probate court to pour that asset into the trust so it can be distributed according to the trust’s instructions. At that point, the court steps back and the trust takes over.
There’s another reason wills remain important even when a trust is in place: nominating a guardian for minor children. A will is the proper legal vehicle for naming who you’d want to raise your children if something happened to you. The court will give strong preference to whomever you nominate, but it retains final say — it will examine that person and consider whether they’re genuinely the best fit for the child.
Courts also prioritize keeping children in their home community, close to their friends and school, to minimize the trauma of losing a parent. Nominating someone who lives across the country might not go the way you expect.
The Real Power of a Well-Drafted Trust
Marshall describes a well-drafted trust as a “choose your own adventure” book. Rather than a single fixed outcome, it builds in branches — pathways the trust can follow depending on what circumstances arise in the future.
Consider this scenario: you leave your estate to your son Jimmy, who’s doing great — a partner at a CPA firm, happily married, three kids. But Jimmy has a heart attack at work. He’s revived, but he suffers brain damage from the time without oxygen. Now he’s disabled and applying for government benefits. A properly drafted trust can ensure his inheritance is structured so it doesn’t disqualify him from the benefits he needs.
The same logic applies across a wide range of situations:
A grandchild who ends up with special needs can receive funds through the trust in a way that preserves their eligibility for government assistance. A beneficiary being sued can be protected — the trust can shield the inheritance from their creditors. A child going through a divorce can be protected from a spouse trying to claim a portion of their inheritance.
Then there’s the situation Marshall sees more than people might expect: a beneficiary with a history of drug or alcohol addiction. Handing someone in recovery a large lump-sum inheritance isn’t just risky — it can be catastrophic. Marshall has seen it firsthand. “I had two children die of drug overdoses within four months of receiving sizable inheritances,” he recounts, “simply because they now had the means to do as much and as many different types of drugs as possible.” A trust can control the timing and structure of distributions to prevent exactly that outcome.
And for minor beneficiaries, the difference is stark. If you leave money to an eight-year-old grandchild in a will and the amount exceeds $15,000, the court must appoint a guardian of the property to receive and manage the funds — reporting to the court every year until the child turns 18, at which point the full amount is handed over with no restrictions. A trust, by contrast, can hold the funds, use them for the child’s specific needs, and release them on a schedule tied to milestones. College tuition? Yes. Spring break in Cancun? No.
Incapacity Planning: Another Area Where Trusts Do More
A will does nothing while you’re alive — which means it’s useless if you become incapacitated. A trust can address that directly.
This is where the relationship between a trust and a durable power of attorney becomes important. A power of attorney authorizes someone to act on your behalf. But here’s a distinction most people don’t know: a standard power of attorney ends at incapacity. A durable power of attorney remains in effect even after you become incapacitated — which is exactly when you need it most. Many people have found forms online and have no idea whether theirs is durable or not.
A trust and a durable power of attorney can also be used together to divide responsibilities in a practical way. For example, you might name a corporate trustee — a professional money management firm — to handle investments and financial management, while naming a family member as your agent under the power of attorney to handle day-to-day decisions, contracts, tax filings, and insurance matters.
This matters more than people realize. Marshall raises a pointed question when clients want to name a busy family member as their sole trustee: “You make them the trustee, and they’re gonna manage your assets and your money every day? Do you understand how big of a job that is?” Splitting the load between a professional trustee and a trusted family member can make the whole system more manageable — and more effective. A will can’t do any of this.
So How Do You Actually Decide?
The will-or-trust question comes down to your specific circumstances — your assets, your beneficiaries, and your goals. Marshall uses a practical rule of thumb in his practice:
If your non-exempt assets total less than $150,000, a will is probably sufficient. Between $150,000 and $200,000, it could go either way depending on personal circumstances. Above $200,000, a trust generally makes more sense. But he’s quick to note this is a guide, not a rule — individual situations always govern.
He walks through a real example: a client with a $500,000 estate made up largely of homestead property ($350,000), an IRA ($50,000), an annuity ($40,000–$50,000), and about $50,000 in the bank, with two adult children. After analyzing each asset — the homestead’s creditor exemption, the IRA’s tax treatment under the SECURE Act, the annuity’s exempt status — Marshall concluded that only about $50,000 was truly exposed in probate. The cost of a full trust plan was overkill. They did a will, structured the beneficiary designations carefully, and that was the right answer for her situation.
Flip the script, though, and a trust becomes essential. Marshall is currently handling a $4 million probate estate with no plan in place. It’s a mess — and it’s entirely public record. In Florida, probate cases fall under the state’s sunshine laws, meaning nearly everything filed with the court is available for public viewing. A disinherited child can write a letter to the judge objecting to the will and immediately gain access to hearings, financial records, and the ability to slow the entire process down. With a trust, that same disinherited child isn’t entitled to any information — the process is completely private.
Multi-state property is another clear case for a trust. A will requires separate probate proceedings in every state where you own real property. Own a home in Florida, a lake house in Michigan, and expect to inherit a cabin in Tennessee? That’s three probate courts. A trust can own property in all three states and bypass probate in each one.
Watch Out for Trust Mills
Not every firm that sells trusts is doing right by their clients. Marshall is candid about what he calls “trust mills” — firms that market trusts as the solution for everyone, regardless of circumstances, often at low flat fees.
The problem isn’t the price. It’s the approach. These firms treat every client the same, which means they’re treating you like a transaction rather than an individual. A trust is not inherently better than a will. Sometimes it’s exactly what’s needed. Sometimes it’s overkill. The only way to know is to actually analyze your estate — your assets, your family, your goals — before recommending anything.
Marshall also points out a common scenario where a basic will adds almost no value at all: the client who wants a will that simply leaves everything to their children equally, and if a child dies first, to that child’s children. “That is exactly what the state of Florida has already written,” he notes. “If you die without a will, that is exactly how your estate is going to be distributed.” Drafting a will that mirrors Florida’s default rules doesn’t accomplish much — and the more valuable conversation is about the family dynamics, beneficiary circumstances, and potential complications that a more thoughtfully built estate plan could address.
The Right Starting Point for Your Estate Plan
Whether a will or trust makes more sense for you isn’t something that can be answered by a general article or an internet search. It requires an honest conversation with an estate planning attorney who will look at what you actually own, who you actually want to receive it, and what circumstances — known and unknown — might affect how that happens.
That includes being open about family dynamics. Is there a child with a substance problem? An estranged relative who might cause trouble? A blended family situation where privacy matters? A beneficiary with special needs? None of that should feel uncomfortable to share — a good estate planning attorney has heard it all and isn’t there to judge, only to build the best possible plan for your situation.
Attorney John Marshall and the team at Marshall Law have been helping families throughout The Villages, Wildwood, Leesburg, Lady Lake, Fruitland Park, Minneola, Sumter County, and Lake County navigate exactly these decisions for years — with real analysis, real answers, and plans that actually fit.
Call Marshall Law at (352) 432-8859 or schedule a consultation online to find out whether a will or trust — or the right combination of both — is the best fit for your estate.