When people consult an estate planning attorney, they often ask, “In what ways are Wills and trusts different, and do I need both?”
Wills and trusts are both vital parts of good estate planning. While their functions may overlap, you will find several important distinctions between the two. Denise Jomarron, a trust and estate planning attorney in Miami, Florida, explains the differences between Wills and trusts in Florida.
A testator or testatrix (the Will creator) can use a Will to name beneficiaries, issue instructions for distributing assets, and indicate specific final wishes such as burial or cremation arrangements.
A Will must also name a personal representative responsible for handling probate and estate administration after the testator or testatrix’s passing. Probate is the court-supervised process of settling a deceased person’s estate, which involves:
The personal representative should be a capable, trustworthy adult who will take care of these tasks with the guidance of a probate attorney. The testator or testatrix may change a Will at any point during their lifetime so long as they have legal capacity to do so. People often do so due to changes in their desires, relationships, family situations, and other circumstances.
If a person dies without creating a legally valid Will, their assets will usually pass to family members according to Florida’s intestacy laws. At times, these laws do not correspond with what the deceased person would have wished. For example, a person may choose to bequeath part of their assets to charity or leave a larger share of their property to certain family members who need it most.
When a person transfers assets to a trust they create, the trust becomes the legal entity that owns the property. Transferring property to a trust can have several legal benefits, such as avoiding probate and providing a higher degree of privacy.
The trust creator, or grantor, can maintain full control of their property during their lifetime by naming themselves as the trustee. When the grantor dies or becomes incapacitated, a pre-appointed successor trustee will take over trust management and distribute assets to designated beneficiaries.
Florida residents have various options for creating a trust, including:
A knowledgeable estate planning attorney can help you create the right type of trust to accommodate your future goals and safeguard your property.
In comparing Wills and trusts, the question should not be “Which one is better?” but rather “How do Wills and trusts differ?” Here are a few key points to keep in mind when creating a Will, a trust, or both:
A Will and estate lawyer can advise you on using a Will, a trust, or both, to fulfill your estate planning goals. In some cases, you may also wish to consult with a financial advisor or tax professional.
Does everyone need both a Will and a trust? While Will and estate lawyers emphasize that everyone should have a Will, creating a trust may not be strictly necessary under certain circumstances. Healthy, relatively young people with moderate assets often choose to create a Will but delay establishing a trust until they amass more property. Furthermore, according to Florida law, jointly owned assets or assets designating beneficiaries do not require probate.
Married people who intend to leave most of their property to their spouse may avoid probate even without setting up a trust.
Are you looking for an estate planning attorney? At Denise Jomarron Legal Group, we help individuals and families design customized plans to ensure protection for their loved ones should they become incapacitated or pass away. Call to schedule your free 20-minute consultation at (305) 402-4494 in Miami, Florida.
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