Florida Last Wills Vs. Trusts

By River Braun, J.D.

Florida Last Wills Vs. Trusts

By River Braun, J.D.

Florida residents can choose from several estate planning documents to direct the distribution of their assets after they pass away. Wills and trusts are two of the most common documents used by individuals planning for their estate. Each has unique benefits and the decision to use a will or trust depends on your specific goals as you plan for the protection of your legacy.

Man in pink shirt working at laptop and reviewing paperwork

Creating a Will

A will is a legal document that identifies your heirs and how you (the testator) wishes to distribute your assets to those individuals. Without a will, your hard-earned assets will be distributed according to Florida laws of intestacy. For example, if this happens, your classic Ford Model A may go to that cousin you've never been fond of instead of the charity you wanted to support.

When you draft your will, you will name an executor to administer your estate. The executor can be any person over the age of 18 who you trust to properly handle your business. The executor's duties include paying your remaining bills and distributing your assets according to the terms of your will, so be sure to choose your executor carefully.

If you've already drafted a will and are concerned about changes to your family or wishes, don't worry. You can change the terms of your will at any time during your lifetime.

Creating a Trust

A trust holds title to property during a person's lifetime. The person who creates the trust is called the grantor. The grantor transfers property into the trust and names a person to serve as trustee to manage the property. In some cases, when you create a trust, you can act as the trustee during your lifetime to maintain control over your assets. Upon your death, a successor trustee assumes control to distribute the assets to your beneficiaries according to your trust's terms.

Florida law provides for a variety of trusts, including revocable trusts, irrevocable trusts, spendthrift trusts, and more. It's always a good idea to talk with an experienced estate-planning attorney before creating a trust to ensure that it aligns with your goals. One of the most common Florida trusts is the revocable trust, which enables you to manage assets, like your house, cars, boats, and other items, and to distribute them to your designated heirs upon your death.

The Primary Differences Between a Will and a Trust

For many people, creating a trust, as opposed to a will, is a way to avoid probate. Probate is a legal process in which an administrator is assigned to pay creditors and distribute assets. The probate process is subject to deadlines and rules that extend the time it takes to distribute assets.

A trust does not require probate, which is a primary advantage of using a trust to distribute property to heirs. Distributing assets through a trust can be quicker than distributing assets through a will. Upon your death, the trustee distributes your remaining assets to your designated beneficiaries without filing any documentation with the probate court. Trusts save money by reducing probate costs and potentially eliminating estate taxes for some individuals.

If you draft a will and not a trust, your executor must file it and additional documents with the probate court to report your debts, assets, and how those assets will be distributed. Also, the probate process is open to the public, whereas the terms of a trust are private.

While there are some clear benefits to creating a trust over a will, most people use both. Some assets are not transferable to a trust and, in certain cases, some assets should remain outside of the trust. For example, property that is acquired after a trust is created may not be transferred to the trust. You can create a will to distribute any property not held by the trust. The fewer assets left outside the trust, the less expensive the probate process is likely to be.

You've worked hard to create your legacy — with just a little planning, you can continue to provide for your family for years to come.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.