Florida law specifically authorizes Spendthrift provisions in a revocable living trust or irrevocable trust. A spendthrift clause in a trust prohibits transfers of a beneficiary's interest in the trust. In some jurisdictions, all income interests are automatically given limited spendthrift protection meaning that they cannot be transferred by a beneficiary or reached by his creditors unless a provision is inserted in the trust document allowing such transfers. If there is no provision allowing the beneficiary to transfer his interest, it can be reached: by a creditor that furnished necessities such as food, clothing, shelter, or medicine; in suits to enforce child support or alimony; to collect a federal tax lien; to the extent of income beyond that reasonably needed by the beneficiary for support and education; and by creditors who have a judgment against the beneficiary and can levy upon 10 percent of the income due. There is no spendthrift protection where the trustor is also the beneficiary.
Under a Totten trust, a trust-like arrangement is created by a person who deposits money in a bank account and names a beneficiary. Because the depositor owes no duties to the beneficiary, a real trust (Florida Revocable trust)is not formed. However, upon the depositor's death, the account will not go through the Florida probate process but will be distributed by the bank directly to the beneficiary. Although the account belongs to the beneficiary, it can be reached by the depositor's creditors. A Totten trust is revoked if the beneficiary dies before the depositor. Revocation can also be by will, but only if the will expressly refers to the account and to the bank.
A trustor can name the trustee of a living trust or of a testamentary trust created in a will as beneficiary of his life insurance proceeds. However, if the trustee of a living trust is named beneficiary, the trust must exist at the time that the beneficiary is named. These principles also apply to retirement plan benefits.
In many jurisdictions, Florida revocable trusts cannot be revoked unless the trustor expressly retains the right to revoke. Revocable living trusts allow a trustor to manage his assets, to plan for his incapacity, and to avoid probate. The beneficiary of the Living trust or Revocable Living Trust gains interest in the assets during the trustor's lifetime and gains possession upon the trustor's death.
A trustor can devise assets in his pour-over will to the trustee of his revocable living trust or to a trust created by someone else. Such a devise is known as a pour-over gift and is valid only if the trust was in effect prior to the will or was created at the same time as the will. The pour-over gift is made to the trust as the trust exists at the trustor's death, which includes any amendments made to the trust after the will is executed.
You can avoid probate in Florida, and pass your property to your children within only a couple of months by creating a Florida Living Trust. A Living Trust is a legal entity that is separate from you as an individual. You transfer title to your major assets to this trust—like your house and your brokerage accounts. During your lives, you and your spouse serve as the trustees of the trust, which gives you the power to buy, sell, and otherwise transfer any of the assets in it. When both of you die, the assets in the trust are transferred to the beneficiaries of the trust, usually your children, without going through probate at all.
Though it costs some money now to set up a Living Trust, and takes some time to manage it, it costs about 1/10th of what the probate process will cost your estate and allows you to craft an estate plan that maximizes what you've got for the people who need it most, your kids.
The process of preparing and planning for a persons financial, health care and personal affairs. It includes documents to designate an agent in the event of a future disability such as a Living Willl or health care surrogate to assist with health care matters if one is unable to do so, a power of attorney to help with financial matters, and wills and trusts to pass financial property to family, friends and possibly other organizations. Estate Planning can ensure that a person is able to pass their property exactly as they desire instead of how Florida law or their home state would dictate it pass and then if trusts are prepared they can direct how the property will be handled long after the grantor is dead. Estate Planning is critical for all people and not merely those with a large estate. It determines who the guardian of minor children would be, who the personal representative/trustee (if there was also a trust) would be that handles the affairs and a guardianship from having to be imposed where the court would take control. Florida probate could be avoided as well through the use of trusts and or proper designations for the way that property is held saving time and money. Also if it is a large estate money could be saved that would otherwise have to be paid for estate taxes. Once all the persons assets exceed a certain exemption amount the estate is taxed at over 40%. With proper planning substantial amounts of money can be saved.
Domicile: The place that a person presently lives with the intent to remain. This is usually a persons permanent residence but if they are merely away on military service, to receive medical care or go to college for example but intend to return home to another place that they intend to return to will be the domicile. The law governing the state and county of domicile will control the disposition of the person's property upon their death. One's Domicile is important in figuring out which county a Florida Probate case is filed.
Claims are debts of the estate. There are two types of creditors in Florida a known or reasonably ascertainable creditor and all others. For claims the Personal Representative is aware of or should be aware of a creditor in Florida has the greater of 30 days from being served or 3 months from publication to file a claim in the probate court or the claim will likely no longer be valid. For all other creditors they are limited to 3 months from publication. If there is not enough money in an estate to pay all the claims then Florida statute 733.707 would determine the order of payment.