A revocable living trust avoids probate of the assets that are actually in it. It does not avoid probate of the assets that are still in the settlor's name. Unmarried partners learn that distinction after a death, when the binder labeled "Living Trust" is in the desk and the house, the brokerage account, and the checking account are not. A pour-over will is how that pile is supposed to reach the trust. It is still a will. It still goes through court.

A trust is created by a transfer of property to a trustee, by a declaration that the owner holds identifiable property as trustee, or by exercise of a power of appointment in favor of a trustee (section 736.0401). The requirements include a settlor with capacity, an intent to create the trust, a definite beneficiary (with listed charitable, animal-care, and noncharitable-purpose exceptions), duties for the trustee, and a rule that the same person is not the sole trustee and the sole beneficiary (section 736.0402). For land, Florida still wants a writing. Section 689.05 says declarations of trust of messuages, lands, tenements, or hereditaments shall be manifested and proved by writing signed by the person authorized to declare the trust, or by last will, or they are void -- with the usual exception for trusts that arise by implication or operation of law. Section 736.0403(2)(a) repeats that land-trust writing rule by cross-reference to section 689.05.

Florida also requires will formalities for the death-time gifts inside a Florida-domiciliary revocable trust. Section 736.0403(2)(b) says the testamentary aspects of a revocable trust, executed by a settlor who is a Florida domiciliary at execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for a will in this state. "Testamentary aspects" means the provisions that dispose of the trust property on or after the settlor's death other than to the settlor's estate. Will formalities are in section 732.502: a writing, signed at the end by the testator (or by another person in the testator's presence and at the testator's direction), with the signing or acknowledgment in the presence of at least two attesting witnesses, who sign in the presence of the testator and of each other. A trust signed without those witnesses can fail as a death instrument even if it worked as a management document during life.

The pour-over itself is section 732.513. A valid devise may be made to the trustee of a trust evidenced by a written instrument in existence when the will is made, or subscribed concurrently with the will, if the instrument is identified in the will. The devise is not invalid because the trust is amendable or revocable, because it has been amended or partly revoked after the will, or because the only res is an expectancy of receiving a devise or listed death benefits. The property then follows the trust as previously or subsequently amended. An entire revocation of the trust in writing before death invalidates the devise. Unless the will provides otherwise, the property is not held in a testamentary trust of the testator; it becomes part of the principal of the trust to which it is devised.

That statute is permission to pour. It is not funding. Assets still titled in the decedent's name alone, with no surviving joint owner and no living named beneficiary, are probate assets. The pour-over will has to be deposited (section 732.901), proved (section 733.201), and admitted. A personal representative has to be appointed under chapter 733. The partner named as successor trustee of an unfunded trust has no letters and no title to those leftover accounts until the probate does its work -- and only if the will actually pours to that trust. If there is no pour-over will, the leftovers follow intestacy. Sections 732.102 and 732.103 still skip unmarried partners.

The trust is not a wall against the estate's bills. Section 733.707(3) makes any portion of a trust over which the decedent had a right of revocation -- a power to amend or revoke and revest principal, or to withdraw or appoint principal for the decedent's benefit -- liable for the expenses of administration and obligations of the estate to the extent the estate is insufficient, as provided in sections 733.607(2) and 736.05053. If, after statutory entitlements and all devises other than residuary devises, the probate assets are insufficient, the personal representative is entitled to payment from the trustee of a section 733.707(3) trust in the amount the personal representative certifies in writing, subject to the exclusions and preferences in section 736.05053 (section 733.607(2)). The trustee must pay those certified amounts; unless the trust says otherwise, the payments are charged as trust expenses, and they come, in stated order, from residue, then from property not identified to a specific gift, then from specified property (section 736.05053). The trustee pays trust-administration expenses, including trustee and trustee's-attorney compensation, before the estate's expenses.

On the settlor's death, the trustee of a section 733.707(3) trust must file a notice of trust with the court of the settlor's domicile and the court having jurisdiction of the settlor's estate (section 736.05055). The notice names the settlor, date of death, title and date of the trust, and the trustee's name and address. The clerk indexes it like a caveat unless a probate is already open. Failure to file does not erase the trustee's duty to pay estate obligations.

Homestead in the trust is still homestead. Section 732.4015 treats the grantor of a section 733.707(3) trust as the "owner," and a trust disposition of what would have been homestead if titled in the grantor's name as a "devise." Putting the house in a living trust does not write around Article X, section 4(c). If a spouse or a minor child survives, the constitutional limit still applies. An unmarried owner with no minor child can generally leave homestead to a partner by will or by that trust -- if the formalities were met and the house was actually deeded in. A declaration in the trust binder, with the deed still in the settlor's individual name, is the unfunded case. The house is a leftover.

The Florida Bar consumer pamphlet on revocable trusts is still right on funding, even though its summary-administration dollar figure is the old $75,000: assets must be retitled, or made payable to the trust, during life, and a pour-over will is still needed for leftovers. The statutory two-year bar on claims is section 733.710.

For unmarried partners the practical stack is dull. Fund the trust: deeds, account retitling, beneficiary designations that name the trust or the partner, as the plan requires. Execute the trust with will formalities if the settlor is a Florida domiciliary. Execute a pour-over will with the same formalities, nominating a personal representative who is actually qualified under sections 733.302 through 733.304. The binder on the shelf is not the funding.

This article is general information, not advice about a particular estate. The Law Office of Shawn C. Newman, P.A. offers a free consultation in person or by Zoom. Call (954) 563-9160 or visit www.shawnnewman.com. The office is at 710 NE 26th Street, Wilton Manors, Florida 33305, and serves Broward, Palm Beach, and Miami-Dade Counties.