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Wills & Trusts

What is a Last Will and Testament (Will)?

A Will is a written declaration signed by the decedent and witnesses, which meets the requirements of Florida law, by which a person can direct the disposition of his/her probate assets upon death. Some important functions of a Will:

  • Provides for disposition of property after death (including specific personal property)
  • Appoints a Personal Representative (Florida’s term for an executor) and successor Personal Representative to administer the estate
  • Appoints a Guardian and successor Guardian, if minor children are involved

Do I need a Will?

A simple Will is generally the easiest and least expensive estate planning tool (other than beneficiary, transfer on death and payable on death designations). If you do not have a Will, or if the Will fails in some respect, the state of Florida will determine how the probate assets will be distributed, based on state intestacy law, which may or may not be consistent with your wishes.

Does a Will Need to Be Probated? Yes. Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid Will, unless the Will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries.

Probate is also necessary to wind up the decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

Revocable Living Trust

There are many different types of trusts with different purposes, each accomplishing a variety of goals. A revocable living trust is one type of trust often used in an estate plan. Whether a revocable trust is an appropriate estate planning tool depends on your individual circumstances. There are several factors to be considered based on personal circumstances and desired goals.

By transferring assets into a revocable trust, you can provide for continued management of your financial affairs during your lifetime (when you’re incapacitated, for example), at your death and even for future generations. Your revocable living trust can allow you to retain control over your assets, avoid probate, and reduce the chance that personal information will become part of public records. Every revocable trust has four important components:

  1. The Settlor (the person creating the trust)
  2. The Beneficiaries of the trust (the person(s) designated to receive the remaining trust assets)
  3. The Trust Res (assets transferred to the trust)
  4. The Trustee(s) – (the person(s) who will manage the trust assets and administer the trust

In order to fund the trust, assets must be transferred to the trust (i.e., bank accounts and title to real estate). Permission may be necessary to transfer interest in some assets, such as partnerships and closely held businesses.

A few facts:

A trust is a private document. However, it is at times necessary to provide limited portions of the document to entities such as banks and brokerage firms in order to establish accounts, the Circuit Court if a “Pour-over” Will is associated with the trust, the property appraiser’s office, and the IRS. In addition, persons affected by the administration of the trust (i.e. beneficiaries) are entitled to certain information about the trust.

A trust does not need to be probated. A trust is not supervised by the court unless a trustee or beneficiary seeks court intervention. However, probate may be needed for assets that were not titled in the trust at the time of death. In addition, there are a few documents that must be filed with the Circuit Court at the start of the trust administration.

A trust does not allow a person to avoid estate taxes or creditors. The assets in the trust at death are included in the person’s estate and subject to estate tax, if applicable. Under Florida law, revocable trusts do not offer creditor protection for the person establishing the trust.

Here are a few specific situations where a Revocable Trust may be appropriate:

  • To provide for the orderly management of the affairs of an elderly person or someone otherwise unable to manage his or her property (i.e., minor children, incapacitated persons, and persons with special needs)
  • For an individual with no immediate family
  • To provide for long term plans and legacy planning
  • Where a person has significant real estate holdings in a number of states
  • Where a will “contest” is expected

Contact us at (941-575-5142) for an initial consultation to discuss your specific needs and concerns.