What is a will?
A will, sometimes called a Last Will and Testament, is a written instrument that specifies how a person’s property is to be distributed after their death. A will does not provide any instructions or powers for the management of property during your lifetime.
However, for a will to be valid in Florida, it must be properly witnessed and executed. Using an experienced trust attorney ensures that your will is valid.
How is a will used to distribute my property?
A will is not effective until after you die, and the will is “admitted” to a probate court. When a will is admitted by the probate court, it means that the court accepts the document as your last will and testament, and then can appoint a personal representative to carry out your directions in the will for your estate. In other words, the personal representative cannot act for you unless the probate court grants them the authority to do so.
What happens to my property if I do not have a will?
If a person dies without a will, this is known as dying intestate. In this case, a decedent’s property will be distributed according to a formula stated in Florida laws governing intestate inheritance. Dying without a will may mean that your property will not be distributed as you desire. A probate and trust attorney will help ensure that when you die, your property is distributed the way you wanted.
What is a “living” trust?
A “living” trust is a document created to provide for the management of assets during the grantor’s lifetime. The grantor of a living trust usually appoints themselves as a trustee to maintain control of the trust property during their lifetime. The most often-cited advantages of a living trust are to plan for incapacity, and avoiding of probate. The grantor usually names a “successor trustee” to manage the property in the case of incapacity death. The successor trustee can then take over the management of the trust property without any further transfer of ownership.
Just creating a “living” trust is of no benefit unless the trust is properly funded. If the grantor’s assets are not properly transferred to the trust, these assets may be subject to probate. This is another reason why having a trust attorney can be so crucial to the trust planning process.
Is a trust better than a will?
This often depends on the nature of the assets. While trusts are often associated with wealthy lifestyles, there’s no need for you to come from a wealthy background in order to set up a trust. Wills and trusts both contain instructions for management and distribution of property, and they both work equally well. In addition, clients who do a will or trust can also have “advance directives” prepared. These documents consist of a durable power of attorney form, living will, and health care surrogate form.
For more information, see the individual sections under “Practice Areas.”