As a Florida senior, have you decided during the New Year to help your family by checking out how your estate could avoid probate when you pass away? Often seniors think that a last will and testament is sufficient to avoid the probate process. But this is a mistake. To truly be sure of a smooth and efficient transfer of assets at the time of your passing, you may need to consider alternatives, for example, a trust agreement.
Now, do not let this cause confusion. The Florida attorneys in our organization, AFELA, can help you understand the limitation of a will-based estate plan. First, there is no mistake that a last will and testament is a basic and important part of Florida estate planning. It can outline your wishes regarding the distribution of your assets and the care of any minor children. A will alone, however, does not avoid probate.
Do you know what probate is? In Florida, probate is the legal process through which a deceased person’s will is validated and their estate is administered. As the probate process begins both known creditors are contacted and heirs are informed of what will happen under the will. The probate process can be time-consuming, expensive, and public, which is why many Florida seniors look for ways to avoid it.
If you decide to use a trust, do you know what a trust is? A trust is a legal arrangement where assets are held by a third party, the trustee, for the benefit of others, often the beneficiaries. The key advantage of a trust is that assets within a trust are not subject to probate. This means they can be distributed to beneficiaries without the delays and costs associated with the probate process.
Is there only one type of trust? No, there are various types of trusts, but they generally fall into two categories: revocable and irrevocable. A revocable trust allows you to retain control over the assets during your lifetime and make changes as needed. An irrevocable trust, however, once established, in most circumstances cannot be altered, offering potential tax benefits and protection against creditors. We recommend that you discuss with your experienced Florida elder law attorney who is a member of AFELA to obtain their guidance and discuss the use of both of these types of trusts to reach your goals.
We need to caution you that creating a trust agreement is only the first step. To go into effect, the trust also must be properly funded. This means transferring assets such as real estate, bank accounts, and investments into the trust agreement. Sadly, failure to fund the trust adequately can result in those assets going through probate, defeating the purpose of the trust.
As Florida attorneys in our organization, AFELA, know navigating the complexities of trust agreements and estate planning is not a do-it-yourself task. Taking the time to work with an experienced Florida elder law attorney is critical. Your attorney can provide advice tailored to your unique circumstances, help you understand the different types of trusts available, and ensure that your trust is properly structured and funded so your goals can be reached.
Finally, while a last will and testament is an important document, it alone does not avoid probate. A well-structured and adequately funded trust agreement can provide a more efficient and private transfer of assets. As a Florida senior, deciding during the New Year to help your family by checking out how your estate could avoid probate when you pass away, is also an ideal time to review your Florida estate planning strategy with a Florida elder law attorney to ensure your and your family’s future financial security.
We know this article may raise more questions than it answers. The Academy of Florida Elder Law Attorneys (AFELA) is the pre-eminent organization of Florida elder law attorneys providing advocacy, education and action on behalf of seniors and people with disabilities. We encourage you to contact one of our attorneys in your area using our Find a Lawyer website for assistance.