What is a will?
A will, sometimes called a Last Will and Testament, is a written instrument that specifies how and in what manner a person’s estate is to be distributed upon their death. A person making a will is known as a testator (man) or testatrix (woman). Anyone designated to receive property under a will is called a beneficiary. A will can also be used to appoint a person responsible for distributing assets to the beneficiaries (personal representative), trustee, or guardian for minor children. A will does not provide any instructions or powers with respect to lifetime management of property. Due to the sometimes complex and in-depth nature of these cases, consulting with a professional trust attorney is advised.
How is a will used to distribute my property?
A will is not effective until it is “admitted” to probate court proceedings. When a will is admitted by the probate court, it means that the court accepts the document as your last will and testament, and appoints a personal representative to act on behalf of your estate. The personal representative is empowered by the court to carry out the instructions in your will. A will is not effective until the court accepts it, and a personal representative is appointed. In other words, the personal representative cannot act for you unless the probate court grants him or her the authority to do so.
What happens to my property if I do not have a will?
If a person dies without a will, known as dying intestate, their property will be distributed according to a formula created by Florida law governing intestate inheritance. If you don’t have a will, your property may not be distributed as you desire. Your attorney will help ensure that when you die, your final wishes are carried out.
What is a trust?
A “trust” is a contract wherein one person (the trustee) manages and holds legal title to property owned by another (the settlor or grantor) for the benefit of a third party or parties (the beneficiary). The grantor is the individual who forms the trust and generally contributes property to the trust. The trustee is the individual or entity that administers the trust for the beneficiaries. The trustee must administer the trust property according to the directions in the written trust agreement, and has a fiduciary duty to the grantor and beneficiaries to carry out the intent of the grantor in a fair and reasonable manner. Trusts can be revocable or irrevocable and may serve a multitude of purposes. The most common trusts are “living” trusts and “testamentary” trusts.
What is a “living” trust?
A “living” trust is a document created by the grantor to provide for the management of assets during the grantor’s lifetime. The grantor of a living trust usually appoints himself or herself as a trustee to maintain control of the trust property during their lifetime. The two main advantages of a living trust are to plan for incapacity and avoiding probate administration. The grantor usually appoints a “successor trustee” to manage the property in the case of incapacity or after their death. The successor trustee takes 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 process.
Is a trust better than a will?
It depends on your particular situation. Trusts have been stereotypically tied to wealthy lifestyles. But this isn’t the case. 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 the management and distribution of property, and they both work equally well. In addition, clients who do a will or trust will also have “advance directives” prepared. These documents consist of a durable power of attorney form, living will, and health care surrogate form.
To schedule the creation your will and the appointing of a personal representative,
consult with Sylvia Noel White,
Trust Attorney of Clearwater, Palm Harbor, Largo, and Dunedin today 727-735-0645