The Importance of Wills and Trusts In Estate Planning

In Florida, if someone dies (the “decedent”) without a will or trust, the Florida Probate Code dictates how to distribute the decedent’s assets. How the law directs distributions does not always align with what the decedent would have wanted. The best way to ensure that your assets are distributed the way you want is to have a sound estate plan in place that outlines your wishes.

A Will Can Prevent Heartache In The Future

A will is a document that allows you to specify how you want your assets distributed after your death and names a personal representative to oversee the administration of your estate. The administration of a will must be done through the Probate Court, with the court overseeing all aspects of your estate’s administration.

The best aspect of a will is that you determine how your assets are distributed versus the default distribution requirements set out in the Florida Probate Code.

Trusts Are ‘Wills Without Court Supervision’

Legally speaking, a trust is a type of fiduciary arrangement that allows a trustee to hold or manage assets on behalf of a beneficiary. The use of a trust depends on your circumstances and personal desires for the management and distribution of your assets. While not everyone needs a trust, they are useful tools for many people. Trusts are also “administered” (or managed) without the involvement of the Probate Court, so the management and distribution of assets is kept private among your beneficiaries.

There are a variety of different kinds of trusts that can be utilized, depending on various circumstances, including:

• Revocable living trusts: Established during your lifetime and modifiable at any time by you, this trust allows for the management of assets during your lifetime should you become incapacitated and directs distribution of assets after your death without court supervision (unlike a will).
• Special needs trusts: If you have a loved one with a disability, you may consider establishing a special needs trust to ensure that they remain eligible for government benefits while still benefiting from your estate.
• Land trusts: This trust holds land for the benefit of an undisclosed beneficiary, therefore keeping the true owner of the property confidential and undisclosed in public records.
• Irrevocable trusts: This trust is created during your lifetime or after your death but is established to meet a very specific purpose. Although the grantor (the creator of the trust) cannot change, remove or modify the assets in this trust, if it’s used for the right reasons, this can be a powerful tool to benefit you and/or your beneficiaries.

The trusts mentioned above are the most used trusts, but there are many other types of trusts used to address a multitude of issues. The type of trust established is dependent on the issues to be addressed, which requires a thorough discussion of your situation with me.

FAQ: Florida Wills

The answers to these frequently asked questions can offer clarity about your estate plan, and the strength and efficacy of your will. Reach out to my office for answers to your specific questions and concerns.

Does a will override a deed in Florida?

No, a will does not override a deed in Florida. If a property is transferred via a deed before the owner’s death, the deed takes precedence over the will. The property will not go through probate and will instead pass directly to the new owner named in the deed. Properly executing and recording deeds can prevent potential disputes or challenges to the property’s transfer.

What invalidates a will in Florida?

Several factors can invalidate a will in Florida, making it crucial to ensure that all legal requirements are met to avoid any complications during the administration of an estate.

• Undue influence or duress: If someone coerced or unduly influenced the person creating or amending a will
• Fraud: If the will was created or altered in fraudulent circumstances
• Lack of testamentary capacity: If the testator lacked the mental capacity to understand the will’s contents and its implications

Addressing these factors in your will is a proactive step that can ensure its validity under Florida law. Any discrepancies or failure to adhere to legal standards can lead to a will being contested in court. An experienced attorney can help safeguard against these issues, providing peace of mind that your wishes will be honored.

Does a beneficiary have the right to see the will in Florida?

Yes, those who stand to benefit from a will have a right to see the document in Florida. Once the will is submitted to probate, it becomes a public record, and beneficiaries can request a copy from the court or the executor of the estate.

This transparency exists so that the will beneficiaries are aware of their inheritance and can take appropriate legal action if necessary to protect their rights.

Let’s Discuss Your Options

Estate planning doesn’t start and end with legal documents; they are merely tools to accomplish your goals. However, wills and trusts are foundational elements of any comprehensive estate plan.

No matter the size of your estate or your age, you need a sound estate plan to protect your future and loved ones. Whether this is your first time thinking about a will or trust, or you need to adjust an established estate plan after a life event, I can help you through the process. My name is John Marshall. At Marshall Law, I assist clients throughout Florida in establishing wills and trusts that protect their interests. To schedule a free initial consultation and discuss your estate plan, call me at 352-619-0744 or complete an online contact form.