Florida Last Wills Vs. Trusts

By Joseph Scrofano

Planning for your eventual demise can help you protect your assets and ensure their smooth transfer of your heirs. However, estate planning can be a complicated process. There are two primary vehicles for estate planning: last wills and testaments, or simply wills, and revocable trusts, or simply trusts. Each legal instrument is governed by Florida state law for Florida residents.

Planning for your eventual demise can help you protect your assets and ensure their smooth transfer of your heirs. However, estate planning can be a complicated process. There are two primary vehicles for estate planning: last wills and testaments, or simply wills, and revocable trusts, or simply trusts. Each legal instrument is governed by Florida state law for Florida residents.

Wills

A testator is the person who drafts a will or uses the assistance of an attorney to draft a will, setting out how she wants her assets distributed upon her death. The testator must appoint someone to serve as the executor of the estate. This person administers these transfers after the testator's death pursuant to the will’s instruction by filing the will in probate court and overseeing the entire probate process. Wills can be destroyed or amended by the testator by following specific requirements under Florida law. However, they cannot be altered after the testator dies.

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Trusts

With a trust, the testator transfers the assets while he is still alive. However, rather than transfer them to his heirs and beneficiaries, he transfers the assets to a trust. Usually, but not always, a testator appoints himself the trustee so that he can maintain control over the assets while he is alive. Once he dies, the person named as the successor trustee takes control of the assets and is responsible for transferring them to the heirs named in the trust.

Differences

There are two main differences between a will and a trust. With a trust, the successor trustee does not have to go to probate court, and can make asset transfers without court supervision. An executor of a will, on the other hand, must file the will in probate court and transfer assets through the probate process. Accordingly, a trust may save the estate money by not having to pay out probate costs. The second major difference is that, in Florida, when a will gets probated, the will and other court documents become public records. In a trust, this does not occur, making a trust a desirable option for individuals who value privacy.

Using Both

While creating a trust helps avoid probate, some people use both a will and a trust. In such cases, any assets that don't get legally transferred to a trust must be probated to effect their transfer. For example, if you do not transfer stocks or properties obtained after you've created a living trust, those assets will have to go through probate.

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

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How to Transfer Property Held in a Trust

Many people transfer real estate, vehicles, investments and personal belongings into trusts as part of their estate planning. Assets held in trust bypass probate when you die so they are transferred to heirs free of court costs and delays. A trust may be revocable, meaning its property can be transferred and managed before the trust maker dies. A trust can also be irrevocable, meaning transfers may not be allowed until the maker dies or other specific events occur.

Things to Do When Someone Dies With a Revocable Trust in Florida

Revocable trusts are a useful tool for avoiding probate in Florida. The process involves transferring property owned during life to the trust with directions on how the assets are to be distributed after death. The individual who establishes the trust is referred to as the settlor, and the person who administers the property is referred to as the trustee. Those who stand to benefit under the trust terms are known as beneficiaries. Upon the death of the settlor, it is the trustee's job to perform certain duties associated with administering the trust in accordance with Florida law.

Last Wills & Trusts

Although few individuals enjoy contemplating death, planning for this unavoidable occurrence allows you to provide clear instructions regarding the distribution of your assets after your death. Estate planning is the area of law that encompasses the practice of creating wills and trusts. Since laws vary between states, it may be best to consult an attorney whose interest and practice focuses on estate planning, particularly if you have a complicated estate.

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