When people think about preparing an estate plan, they focus on writing a will. However, this is just one of many legal documents and tools someone could use in their estate plan. Another common tool is a trust. While they perform similar functions, there are some distinct differences. These six things to know about trusts and wills can help you understand how these documents work to protect your wishes and estate.
1. Living Trust vs. Will
Both a will and a living trust perform similar functions in estate planning. However, they are different in their requirements, function, and enforcement.
2. Should I Have a Will or a Trust?
The advantage of having a trust is that it can skip probate court. This quickens and streamlines the process of your heirs receiving the inheritance. In contrast, a will must go through probate court. When you skip probate court, the details of your assets and how they are distributed stay private. Your will becomes a part of public record because probate is court, which means all documents submitted are public record.
The Advantage of Having Both
Instead of trying to choose between trusts and wills, consider having both a will and a living trust. Your trust can only transfer what you include in writing. So if you do not include everything in the trust, it doesn’t get included, and you need a will to transfer these other assets. You also need a will to be able to name a guardian for your minor children and outline your funeral wishes. Ideally, you have both documents that work together for a holistic plan that covers all aspects of your passing.
3. Requirements for Living Trusts in Florida
To properly form a living trust in Florida, you need to meet a certain set of requirements.
- Revocable
- Trustmaker, Grantor, or Settlor
- Trustee
- Lifetime Beneficiary
- Death Beneficiary
4. Requirements for a Will in Florida
There are several requirements that a will must satisfy for it to be valid in Florida. Therefore, it is in your best interest to ensure that your will is valid. If it isn’t, it will be thrown out, and your estate will be distributed as if you didn’t have a will.
- It must be in writing
- Must be created by a competent person over the age of 18
- It must be signed by the testator
- It must be signed by two witnesses
5. Living Trust may Override a Will
As long as your attorney sets up your living trust correctly, your living trust and will complement and coordinate with each other. However, if there is a discrepancy at the time of distribution, the court may follow the wishes of the trust over those expressed in the will.
6. Do You Need an Attorney to Prepare Living Trusts and Wills in Florida?
While you could technically prepare your own will, this isn’t always the smartest choice. There are several templates available online, but they aren’t always correct. The law can change, rendering older templates no longer compliant. Even if the templates are correct, you may include something that doesn’t reflect your wishes or forget something you wanted to include. Speaking with an attorney can give you guidance to help you make an informed decision.
The law (Florida Statutes § 736) requires that a lawyer set up your living trust for you. The benefit of this is that there is a reduced risk of challenges. In addition, when you hire a knowledgeable attorney, the risk of mistakes being made is lower.
Prepare Your Will and Living Trust
The lawyers at The Principal Law Firm help clients prepare comprehensive estate plans. This could include living trusts and wills, among other documents. Speaking with an experienced estate planning lawyer will help you determine what you need to ensure your wishes and assets are handled properly.
Schedule a consultation to speak with an experienced attorney about your Florida estate planning documents. We can help you determine the best plan for your estate.
