Can a trust be revoked by will in Florida?
Yes, unless the terms of the trust say otherwise, a revocable trust can be revoked by will in Florida.
Follow the Trust Document
The primary way to revoke a trust is to follow the terms of that trust. A well-drafted trust document will specify how the trust may be revoked. Thus, if the document states that the trust can revoked by will, then the matter is settled. The document may also provide other means of revocation as well.
Often attorneys want to provide the settlor (the person who creates the trust) with as much flexibility and discretion as possible. This is especially true of revocable living trusts, which are often used as an estate planning tool. Thus, when drafting the trust, attorneys will often provide clear, definite ways to revoke the trust. This is almost always preferable for a client, as it provides a concrete means to take back the trust assets if desired. The goal is always to give the client the ability to do anything the client wants. So, if you want to revoke your trust, the answer for how to do it can likely be found in the trust document itself.
But what if the trust does not say how to revoke?
If the trust document does not explain how to revoke the trust, then your first step needs to be determining if the trust is actually revocable. If the trust is irrevocable, you might not be able to take the assets back. But unless the trust documents explicitly states that the trust is irrevocable, the trust is revocable by default in Florida.
Assuming the trust is revocable but does not state how to revoke, the Florida statutes give two ways to revoke the trust. First, you can revoke by executing a subsequent will or codicil that refers to the trust specifically or that specifically devises the property in the trust. The key word here is “specifically.” You want your will to point out the trust by name. Or if you revoke by devising property in the trust, you need to point out that property specifically (as opposed to just including it in the residual estate).
The second method for revocation is by any method that will provide “clear and convincing” evidence of the settlor’s intent to revoke. This is dangerous territory, and revoking by this means is usually not the best way to go. This method requires a court to find clear and convincing evidence that the settlor intended to revoke. That is a hard standard to meet. “Clear and convincing” means that the evidence must be precise, lacking in confusion, and produce a firm conviction in the mind of the judge that the settlor intended to revoke the trust. This is a much riskier and more difficult approach than just specifically naming the trust in your will.
However, as noted above, the absolute best solution for revocation is to provide a means for revocation in the original declaration of trust and follow that method to revoke.
Bottom Line
Follow the language of the trust. And if the trust doesn’t specify what to do, then it is likely time to revoke by will or codicil. And if you do revoke by will or codicil, the best practice is almost always to name the trust specifically when revoking.
If you want to revoke or change your trust document or assets, contact an estate planning attorney for a free consultation.