The Advantages and Disadvantages of a Living Trust or Last Will in Florida

by Joseph Scrofano

    Estate planning involves taking steps to protect your assets for your family’s benefit. It allows you to manage your assets and ensure that they are distributed the way you want them distributed upon your death. The two primary estate planning mechanisms in Florida are a last will and testament, or simply a will, and a living trust. Each has advantages and disadvantages.

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    Last Will

    A will is a document written and signed by someone who has assets -- called the “testator." Florida probate law requires that two witnesses attest to the fact that they saw the testator sign the will. These witnesses must sign the will both in their own presence and in the testator’s presence. The will typically assigns someone as the personal representative of the estate who will probate the will upon the testator’s death and distribute the estate’s assets pursuant to the will’s instructions.

    Living Trust

    On the other hand, a living trust is a legal document which manages the assets of the estate during the trust owner's -- called settlor -- lifetime. The settlor grants control over the assets to the trust. However, the settlor typically retains control of the assets by naming himself as the “trustee.” Because a living trust is revocable, the settlor can change it any time. The settlor typically names a “successor trustee” who assumes control over the assets upon the settlor’s death or incapacitation, and transfers the settlor’s assets based on the trust’s directives.

    Advantages

    Both types of estate planning mechanisms have advantages. If someone dies without a will or trust set up, then Florida's laws intestacy govern how that person’s assets are distributed. Intestacy uses rigid formulas to determine who gets what, with the decedent having no control over the process. With a trust, the estate avoids the costly and time-consuming probate process. In addition, a probated will becomes public record in Florida, which makes a decedent’s intimate financial details available as public information. Because living trusts avoid probate, they do not become public.

    Disadvantages

    It usually costs more to set up and create a living trust than to draft and execute a last will. In addition, a trust generally does not create any significant estate tax advantages over a last will. Finally, to transfer all assets to a trust requires changing titles from the individual to the trust for most assets.

    About the Author

    An attorney and founder of ScrofanoLaw, a general practice law firm in Washington, D.C., Joseph Scrofano has been writing on legal issues since 2008. He holds a Juris Doctor from the Washington College of Law, a Bachelor of Arts with special honors from the University of Texas and a master's degree in international affairs from American University's School of International Service.