Frequently Asked Questions About Florida Wills and Trusts

What is the difference between a Will and a Trust?

A Will takes effect upon the death of the person. It must go through the public process of Probate, where a judge will determine the Will’s legal validity. The personal representative designated in the Will must identify assets, notify creditors, settle debts, liquidate property and distribute the remaining asset to the named beneficiaries. Individuals with minor children can designate a guardian in their Will to care for them if both parents pass away.

On the other hand, when properly funded, a Trust avoids Probate, remains private and allows for easier asset distribution to beneficiaries. Once assets are transferred into a Trust, the Trust becomes the legal owner of those assets.

How does a Living Will Differ from a Will?

A Living Will and a Will serve distinct purposes. A Living Will is a legal document that enables an individual to specify their preferences regarding medical treatment if they become incapacitated and unable to communicate their wishes. It primarily addresses health care decisions and medical interventions, offering guidance to health care professionals and loved ones about end-of-life care preferences. A Living Will does not deal with asset distribution or guardianship of minors, whereas a Will focuses on these matters and names a personal representative to administer the Estate, pay creditors and distribute assets in accordance with Probate.

What happens when an individual dies without a Will or dies with a legally invalid Will?

When someone dies without a Will or with a Will deemed legally invalid by a judge, Florida’s intestate succession laws take effect to determine asset distribution, which usually starts with the surviving spouse followed by the children, parents or siblings in specified order, according to the law. In cases where a judge determines a Will is invalid, the Court will apply these same intestacy laws. Both scenarios can complicate the Estate settlement process.

Can retirement accounts be placed in a Trust?

While you cannot transfer retirement accounts into a Trust, you can designate a Retirement Trust as the beneficiary of your retirement accounts and dictate the terms of the funds upon your death. This type of Trust can offer extended protection and control over how your beneficiaries use the funds, shield assets from creditors, provide tax benefits and transfer wealth to future generations effectively.

What are the two Trust categories?

The two Trust categories are revocable and irrevocable. As the name suggests, a Revocable Trust can be changed or canceled by the grantor during their lifetime, while an Irrevocable Trust cannot be changed or dissolved — except in rare cases that involve legal complexities requiring Court intervention. An Estate Planning attorney can help you determine which type is right for you.

Is a Living Trust the same thing as a Revocable Trust?

In Florida, a Living Trust and a Revocable Trust are essentially the same. A Living Trust, often referred to as a Revocable Living Trust, is a legal entity created during the grantor’s lifetime to manage their assets. The term “revocable” indicates that the trust can be amended or revoked by the grantor while they are alive.

A Living Trust and a Revocable Trust serve similar purposes, such as avoiding Probate, maintaining privacy and providing flexibility in asset management. These Trusts allow for seamless transfer of assets to beneficiaries according to the grantor’s wishes, without the need for Court involvement.

While there may be minor differences in terminology or specific legal requirements, the fundamental concept and functionality of a Living Trust and a Revocable Trust in Florida align closely, often making them interchangeable terms in practical use for Estate Planning purposes. However, Irrevocable Living Trusts also exist, in which the grantor creates the trust during their lifetime and cannot act as the trustee. Your Estate Planning attorney can guide you regarding the right type(s) of Trust(s) for you and your purposes.