What You Need to Know about Wills and Trusts in Florida

Wills and certain types of trusts are tools designed to do the same thing—pass on assets after death. If you die without a will Florida (this is called dying “intestate“), your property will be distributed to your heirs according to a formula fixed by law. Unfortunately, the outcome isn’t always what you might have wanted and often comes as a surprise and disappointment to your family. 

Your family isn’t like anyone else’s. With a will and/or various types of trusts, you decide how they are taken care of after your passing. Each tool uses a different method. An experienced estate planning attorney can help you create an effective will and determine which types of trusts will suit your circumstances the best. 

What is a Will?

A will is generally the most basic and best-known way to have a say in what happens to your property after death. It is a legal document that identifies your heirs and how you want to distribute your assets among them. A will can also be used to choose the guardian of minor children in the event of a parent’s death, and there is no surviving biological or adoptive parent. 

Under Florida law, there are several requirements for making a valid will. First, the will must be executed by the “testator” (the person making the will), who is at least 18 years old and in sound mind and body. That execution must happen in the presence of two competent witnesses who are also in the presence of each other. Additionally, the testator and the witnesses must sign before a notary public.

No will becomes final until the death of the testator. Before that, it may be changed or added to by the testator by drawing a new will or by a “codicil,” which is simply a separately written addition or amendment executed with the same formalities as a will. Additionally, a will is not effective until it is reviewed in a Probate Court and a Probate Judge declares the will as your valid “last will and testament.” 

What is a Trust?

A common misperception is that trusts are only for the wealthy. On the contrary, a trust can be a valuable estate planning tool for many families who want to protect their assets, minimize the tax burdens of their loved ones, and ensure their secure future.  

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. This is called a Living Trust. Upon your death, a successor trustee assumes control to distribute the assets to your beneficiaries according to your trust’s terms. 

Other types of trusts include Charitable Trusts, Irrevocable Trusts, and Insurance Trusts. Each with its own purpose and rules. Trusts provide great flexibility to families wishing to retain control over their lifetime assets while documenting specific instructions regarding the distribution of wealth after death. 

Why Might I Place My Assets in a Trust?

Many people today choose to pass their assets through trusts instead of through their will in Florida. That’s often because assets in a trust, as opposed to a will, can be immediately disbursed upon the death of the is grantor, without the beneficiaries needing to wait or go through the hassle of the probate process. 

Probate in Florida is notoriously lengthy and expensive. It is a cumbersome legal process in which an administrator is assigned to pay creditors and distribute assets. Therefore, even if you draft a will but do not have a trust, your executor must file the will, and additional documents, with the probate court to report your debts, assets, and how those assets will be distributed.

Additionally, a will does not dispose of all your property. Rather, only probate assets can be included in a will. Assets that are subject to probate in Florida include anything that is only in the decedent’s name. That might be a bank or investment account, a life insurance policy, a retirement account or annuity contract with no specific beneficiary, or real estate. There may be conflict among family members over other assets without express instructions from the deceased about how non-probate assets should be handled. 

Thus, trusts can save money by reducing probate costs and save frustration by cutting down the time it takes for your assets to pass to your loved ones. A trust can also help prevent potential conflicts when the estate is settled. 

Navigating the technical and legal aspects of wills and trusts can be difficult. An estate planning attorney can walk you through the process to decide the best course of action for you and your family. Call our experienced estate planning lawyers at Mortellaro Law today: 813-367-1500 to start the process now so your family is protected in the future.

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