A Florida Will is one of the most basic estate-planning documents. A Will allows the grantor to devise his or her property with very limited encumbrances; however, there are issues that are better addressed with other estate-planning documents - like a Trust. If you are debating whether to use a Trust or a Will, then this blog will help you. However, it is wise to seek assistance from an estate-planning attorney before making a decision.
What is a Will?
A Will is a written instrument, signed by the decedent and at least two witnesses in each other presence, that fulfills the requirements of Florida law. A Will names the beneficiaries for the testator's probate assets. The testator can also designate guardians for minor children and a personal representative to administer the estate. If a Will was validly executed in another state, Florida courts will recognize the document as a Will except in the case of a holographic Will. Holographic Wills are Wills written entirely in the testator's own handwriting and in most states witness signatures are not required. However, Florida law requires that holographic Wills be witnessed and signed in the same manner as any other Florida Will.
What is a Trust?
A Trust is a relationship created at the direction of an individual, in which one or more persons hold the individual's property subject to certain duties to use and protect it for the benefit of others. The creators of a Trust may control the distribution of their property during their lives or after their deaths through the use of the instrument. There are many types of Trusts and many purposes for their creation. A Trust may be created for the financial benefit of the person creating the Trust, a surviving spouse or minor children, or for a charitable purpose.
TRUST VS WILL
Some common reasons to use a Trust over a Will include:
- A. Are you seeking to avoid probate?
You must first open probate to carry out the instructions in a Will. A Trust, however, can provide a way to bypass probate because the Trust owns the property the day it is transferred to it. Therefore, the dead of the settlor does not impact ownership in the property.
- B. Are you seeking to plan for mental disability or special needs?
If you have special needs or dependents with special needs, a Trust can be customized to meet these needs. A Will, on the other hand, allows you to transfer property but does not allow you to exercise substantial control over your heirs' use of property.
- C. Is privacy one of your main goals?
If a Will is probated, then all records of the proceeding are publicly available. Therefore, a Will is probably not a viable option if your primary goal is privacy.
- D. Do you have a blended family?
If you have children that are not children of your spouse, then a Will might not be the best option to leave them your property. A Trust is more flexible than a Will and can be a better option for blended families.
- E. Do you own real property in more than one state?
If you leave property in a Will located in another state, then it might be necessary to hire an attorney in the other state to have the property transferred. A Trust, however, can provide you the option to pass property located in another state without the need of incurring the extra expense of hiring the out-of-state attorney.
- F. Are you looking to protect assets from creditors?
Some trusts can protect assets from your creditors as well as make the assets exempt form the claims of medicaid.
The choice between a Trust and a Will might not be as straightforward as it seems. Minuscule details in your case might easily pass unperceived but still have a tremendous impact on your decision. Your best option to make an informed decision is to contact an estate-planning attorney. For an estate-planning attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the top of this page.