Putting Your House in a Trust in Florida

Transferring a Florida home to a trust means recording a new deed that names the trust as the property owner. The homeowner continues to live in the home, but legal title now belongs to the trustee. The type of trust determines whether the home gets probate avoidance, creditor protection, or both.

A revocable living trust avoids probate but adds no creditor protection. An irrevocable trust removes the home from the owner’s personal estate and can shield it from judgment creditors, but the owner gives up direct control. A lady bird deed avoids probate on the home at lower cost, though it covers only that property and does nothing for the owner’s other assets.

How a Revocable Living Trust Works for a Home

A revocable living trust is the most common vehicle Florida homeowners use to hold their house. The owner creates the trust and names themselves as trustee, remaining the primary beneficiary. The owner still lives in the home, pays the mortgage, and can sell or refinance without needing a co-trustee’s or beneficiary’s approval.

When the owner dies, the successor trustee transfers the home to the named beneficiaries without a probate case. Florida’s probate process typically takes six months to two years. The attorney and personal representative fees in a probate come out of the estate.

If the owner becomes incapacitated and can no longer manage their own affairs, the successor trustee takes over the property without a court-appointed guardianship. The trust’s own incapacity provision controls the handover and sets how incapacity is determined, typically by physician certification. The owner remains the lifetime beneficiary.

A revocable trust adds no creditor protection of its own. Under Florida Statutes § 736.0505(1)(a), a revocable trust’s property is reachable by the owner’s creditors during the owner’s lifetime, unless that property is exempt in the owner’s own name. An asset a creditor could reach in the owner’s name stays reachable inside the trust. The homestead is the exception. Florida’s constitutional protection follows the residence into a properly drafted revocable trust, so the trust neither adds protection nor takes it away. A homeowner whose exposure runs past the homestead exemption needs an irrevocable trust.

Why an Irrevocable Trust Provides Creditor Protection

An irrevocable trust provides creditor protection that a revocable trust cannot, because the owner transfers legal and equitable title out of their personal estate. The owner must not be a beneficiary. Florida treats self-settled trusts (where the person who created the trust is also a beneficiary) as providing no creditor protection at all under § 736.0505(1)(b).

A properly structured irrevocable trust names a spouse, children, or other family members as beneficiaries while the homeowner remains outside the beneficiary class. The trust combines a spendthrift provision (§ 736.0502), which blocks creditors from attaching a beneficiary’s interest, with discretionary distribution clauses (§ 736.0504), which block creditors from forcing the trustee to distribute.

A homeowner who transfers their home to an irrevocable trust gives up direct ownership. The trustee manages the property according to the trust terms. The homeowner cannot sell, refinance, or take the property back without the trustee’s involvement.

A transfer made while the owner is insolvent, or made to hinder a known creditor, can be challenged as a fraudulent transfer under Florida’s Uniform Fraudulent Transfer Act (Chapter 726).

A creditor claiming the transfer was made to hinder, delay, or defraud has four years from the transfer date, or one year after discovering it, whichever is later. A claim based only on the owner’s insolvency runs four years from the transfer, with no discovery extension.

Does the Homestead Exemption Survive a Trust Transfer?

Both parts of Florida’s homestead exemption, the property tax reduction and the constitutional protection from forced sale, survive a transfer to a properly drafted revocable trust. An irrevocable trust is different, because the constitutional exemption reaches only property owned by a natural person.

Property Tax Exemption

A home transferred to a revocable living trust keeps its property tax homestead exemption under §§ 196.031 and 196.041(2). The homeowner must continue to use the property as a permanent residence. The trust must give the homeowner the right to live there for life, which Florida law treats as equitable title, and should also make the homeowner responsible for the taxes and upkeep. County property appraisers routinely approve homestead exemptions for homes in revocable trusts, but a trust that is vague about the homeowner’s right to occupy the home can cost the exemption.

Constitutional Creditor Protection

Florida’s constitutional homestead protection under Article X, § 4 shields a primary residence from forced sale by most creditors. This protection attaches to the homeowner personally. When a home moves into a properly drafted revocable trust, the homeowner is still treated as the equitable owner, so the constitutional homestead protection generally continues.

When a home moves into an irrevocable trust, the homeowner no longer holds equitable title. Florida’s constitutional homestead protection is limited to property owned by a natural person, so the home generally loses the constitutional exemption. What protects it instead is the transfer itself. The homeowner no longer owns the home, so a later judgment against the homeowner does not attach to it. That protection is only as good as the transfer. A mortgage, a property tax lien, and a fraudulent transfer claim all survive the move into the trust.

The property tax exemption is a separate question. A homeowner who deeds the residence to an irrevocable trust but keeps the right to live there can still claim the property tax homestead exemption. Florida courts allowed it for qualified personal residence trusts in Robbins v. Welbaum and Nolte v. White.

Should Married Couples Transfer Their Home to a Trust?

Married Florida homeowners often do better keeping the home in their own names while both spouses are alive. A home held as tenants by the entirety passes automatically to the surviving spouse outside probate. Entireties ownership also shields the property from the individual creditors of either spouse.

Transferring a jointly owned home to a trust changes the ownership structure and may eliminate entireties protection. Keeping the home in personal names gives the couple both creditor protection and automatic survivorship without trust costs. Transferring to a trust becomes relevant after the first spouse’s death, when entireties protection is no longer available and the surviving spouse faces probate risk.

Florida law guarantees a surviving spouse at least a life estate in the homestead property under § 732.401, regardless of what a will says, and a trust transfer does not automatically override that right. Article X, Section 4(c) of the Florida Constitution bars devising a homestead at all if the owner is survived by a minor child, and allows a devise only to the spouse if there is a spouse and no minor child.

Florida Statutes § 736.1109 applies the same limit to a trust. If the trust directs the homestead somewhere the constitution does not allow, title passes under § 732.401 at the moment of death and the trust’s terms drop out. A spouse can waive the devise restriction by signing a deed that includes the waiver language in § 732.7025. That waiver is narrow. It does not give up the homestead’s creditor protection, and it does not remove the requirement that the spouse join any deed or mortgage of the homestead.

Can a Home with a Mortgage Go into a Trust?

A mortgage does not prevent a homeowner from transferring property to a trust. The Garn-St. Germain Depository Institutions Act (12 U.S.C. § 1701j-3) prohibits lenders from enforcing a due-on-sale clause when a homeowner transfers a home into a living trust in which the homeowner remains a beneficiary. The federal exemption covers any residential property with fewer than five dwelling units, not just a primary residence.

The homeowner remains personally liable for the mortgage debt after the transfer. For a revocable trust, nothing changes. The same person makes the same payments. For an irrevocable trust, the trustee may manage payments from trust assets, but the original borrower typically remains liable under the loan terms.

The Garn-St. Germain exemption covers only a trust in which the borrower remains a beneficiary. An irrevocable trust that leaves the homeowner out of the beneficiary class for asset protection falls outside it, so the lender can enforce the due-on-sale clause. A mortgaged home should not be deeded to that kind of trust without the lender’s written consent.

Two steps follow the transfer. The homeowner notifies the mortgage lender and updates the homeowner’s insurance policy to name the trust as the owner. The lender cannot demand early repayment for a revocable trust transfer, but failure to notify the lender can cause administrative problems with escrow and correspondence.

Some title insurance companies require a new endorsement when property is retitled to a trust. Others may issue a new policy. Checking with the title company before recording the deed avoids a lapse in coverage.

How to Transfer a Florida Home to a Trust

The deed that moves a Florida home into a trust must state the trust’s full legal name, the trustee’s name, the date the trust was executed, and the property’s legal description exactly as it appears on the current deed.

The most common deed types for this transfer are a quitclaim deed and a warranty deed. A quitclaim deed is simpler and commonly used for transfers to the homeowner’s own trust because there is no change in beneficial ownership. A warranty deed provides title protection against liens and third-party claims but may require a title search.

Florida law requires the deed to be signed before a notary and two witnesses. If the homeowner is married and the property is homestead, the spouse must join the deed even if the spouse is not on the current title. A deed conveying homestead to a third party without the spouse’s joinder is invalid. The signed deed is recorded with the clerk of court in the county where the property is located. Recording fees are $10 for the first page and $8.50 for each additional page.

Documentary stamp tax on a transfer to the homeowner’s own revocable trust is typically the minimum $0.70, because there is no change in beneficial ownership and no consideration is exchanged. Florida Administrative Code Rule 12B-4.013(25) treats that deed as exempt whether or not the home carries a mortgage, and tax is due only if the deed gives other people a current beneficial interest in the trust.

What a Trust Transfer Means for Taxes

A transfer to a revocable trust has no income tax consequences during the owner’s lifetime. The IRS treats the grantor and the revocable trust as the same taxpayer, so the homeowner continues to report any property-related income or deductions on their personal return.

Beneficiaries who inherit property through a trust receive a stepped-up tax basis at the owner’s death. The step-up depends on whether the property is included in the owner’s estate at death, not on whether a trust holds it. A home in a revocable trust is included and gets the full step-up.

A home given away to an irrevocable trust during the owner’s lifetime is outside the estate, so the beneficiaries take the owner’s original basis and pay tax on the full gain when they sell. The IRS confirmed that treatment for irrevocable grantor trusts in Revenue Ruling 2023-2. The same transfer also ends the owner’s $250,000 capital gain exclusion on a sale of the residence unless the trust is a grantor trust.

Florida has no state income tax and no state estate tax. Federal estate tax applies only to estates exceeding the federal exemption, which is $15 million per person in 2026 and $30 million for a married couple.

Cost of Putting a House in a Trust

A standard revocable living trust in Florida costs between $2,000 and $5,000 when prepared by an attorney, including deed preparation and recording. An irrevocable trust built for asset protection runs $3,000 to $8,000 to establish, because it also needs spendthrift provisions, distribution standards, and trust protector powers.

Florida’s statutory probate fee schedule under § 733.6171 runs on the inventory value of the probate estate. Protected homestead is not a probate estate asset, so the house itself largely sits outside the percentage schedule. A trust reduces the remaining cost but does not erase it. Florida Statutes § 736.1007 sets the trustee’s attorney fee for the initial trust administration at 75 percent of the same schedule. Both statutes set default fees rather than mandatory ones.

A lady bird deed costs $400 to $1,000 to prepare, plus recording fees. It keeps the home out of probate as a trust does, but it covers only the property named in the deed and does nothing for other assets.

When a Trust Is Not the Best Option

A lady bird deed avoids probate without requiring a trust. The owner retains full control during their lifetime, including the right to sell, mortgage, or revoke the deed. The property passes automatically to named beneficiaries at death. A lady bird deed preserves the homestead exemption and typically costs a fraction of what a trust costs. For homeowners whose only goal is keeping the house out of probate, a lady bird deed is often the simpler choice.

Tenancy by the entirety already gives a married couple automatic transfer to the surviving spouse outside probate, plus protection from either spouse’s individual creditors. It does nothing for assets titled anywhere else.

Homestead protection and Florida’s exemption statutes do not reach every asset a homeowner owns. Taxable brokerage accounts and other non-exempt property stay exposed after the home is protected. A trust-based asset protection plan covers those assets.