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Differences Between a Living Trust and a Will in Florida

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A senior setting up a trust with an advisor at her home in Florida.

Weighing whether you need a trust vs. will in Florida? A last will and testament is a basic building block for establishing an estate plan. You may, however, need to consider adding a trust to your plan if you have significant assets or a more complicated estate. There are some important differences between the two that are helpful to understand.

Need expert financial advice? A financial advisor can help you create a customized money management plan.

Understanding Florida Last Will and Testament

A will is a legal document that allows the creator to specify how they want their assets to be distributed after their death. You can also use a will to name a legal guardian for minor children or leave care instructions for pets.

Under state law, these four conditions must be met in order for a Florida will to be considered legally valid:

  • The will maker or testator must be at least 18 years old.
  • The willmaker must be of sound mind at the time the will is signed.
  • Wills must be written; oral (nuncupative) or video wills are prohibited.
  • Once written, the will must be signed in the presence of at least two competent witnesses.

Florida law doesn’t require you to notarize a will. However, you may choose to have your will notarized in order to make it self-proving. A self-proving will is effectively confirmation that it’s been executed properly and eliminates the need for the probate court to contact the witnesses to verify their signatures.

If you need to change your will once it’s complete, you have two options for doing so under Florida law. You can either add a written codicil changing the terms of the will or you can revoke it in its entirety. If you choose to revoke your will you can either do so in writing or by destroying the will (and all copies of it) physically.

What Is a Florida Trust?

A trust is a legal arrangement in which a grantor transfers ownership of assets to a trustee. The trustee then manages those assets on behalf of one or more named beneficiaries. Trustees in Florida are held to a fiduciary standard, which means they must act in the best interests of the trust beneficiaries at all times. Trustees who commit a breach of fiduciary duty may be removed by the probate court.

Florida recognizes two broad categories of trusts: revocable and irrevocable. A revocable trust, also referred to as a living trust, can allow you to manage your assets during your lifetime while providing specific instructions for how they should be managed after you’re gone. Revocable trusts can be altered while you’re still living, which can include:

  • Adding or removing beneficiaries
  • Adding or removing assets
  • Changing the trustee or naming a successor trust
  • Changing your instructions as to how trust assets should be managed

The types of assets you might transfer to a living trust in Florida can include your primary home, investment properties, vehicles, bank accounts, antiques, collectibles and other valuables. If you have income-producing assets in the trust, you can draw on that income as long as you’re still living. Once you pass away, the trust becomes irrevocable.

An irrevocable trust works much the same way as a revocable trust, with one key difference. Once created, the trust terms generally cannot be changed. Once you pass away, a revocable trust becomes irrevocable under state law.

Trust vs. Will in Florida Key Differences

A couple reviewing requirements to set up a will in Florida.

The main differences between a living trust vs. will in Florida lie in the purpose each one is meant to serve. Establishing a will in Florida can help you to:

  • Specify how you want your assets to be distributed after you die
  • Name a legal guardian and a financial guardian for minor children
  • Avoid intestacy

Intestacy simply means that someone has passed away without a valid will in place. When that happens, the state decides how that person’s assets are distributed. In Florida, the order in which assets are distributed depends on whether the person was married or not and if they had children.

If they were unmarried but had children, their children automatically inherit their estate. If they had no children, then their parents are next in line to inherit, followed by their siblings if their parents are deceased. If they were married, their spouse can inherit—but the share of the estate they’re entitled to depends on whether there are children in the picture.

Dividing up assets when someone dies intestate can complicate things, especially if there are children from a current marriage as well as children from a previous marriage. Drafting a Florida will can ensure that your estate is divided according to your wishes and ensure that probate goes more smoothly. Probate is the legal process by which an estate is inventoried and distributed to a deceased person’s heirs according to the terms of a will, or state inheritance laws if no will exists.

A living trust, meanwhile, is not subject to probate in Florida. Any assets that you leave in a trust can be transferred to the trust beneficiaries upon your death, according to the terms that you set during your lifetime.

Trust vs. Will in Florida: Which One Do I Need?

At a minimum, it’s wise to establish a last will and testament in accordance with the rules set down by Florida law. Having a will in place can help your loved ones avoid potential complications during probate later on, as you’ll have given the probate court a blueprint for what to do with your assets.

Whether you need a living trust as well can depend on a few things, including:

  • The size of your estate
  • How many beneficiaries you plan to name
  • What you want to happen to your assets

There are some specific use cases where a living trust might be an appropriate addition to a Florida estate plan. For example, say that you have a special needs child who requires constant care. You may choose to create a special needs trust to provide for them financially now and after you’re gone.

You might also choose to establish a revocable trust to prevent a spendthrift beneficiary from running through their inheritance too quickly. Or you may write the terms of the trust to specify that while your children may inherit assets from you, their spouses may not.

That’s one advantage of having a trust in addition to a will—you can use it to be as specific as you like when deciding how your assets should be managed while you’re living and after you’re gone. If you’re unsure of whether a will alone is sufficient or you might benefit from having a trust as well, talking to a financial advisor can help. A professional advisor can look at your entire financial situation to help you create a comprehensive estate plan.

Bottom Line

A financial advisor comparing trust and will options for a client in Florida.

Weighing the merits of a trust vs. will in Florida can help you to better understand where each one might fit into your estate plan. In addition to consulting a financial advisor, you may also benefit from talking to an estate planning attorney to ensure that any will or trust you create adheres to state laws.

Estate Planning Tips

  • In addition to offering advice on estate planning, a financial advisor can also help with other things like tax planning or retirement planning. If you don’t have a financial advisor yet, it may be worth meeting with one to discuss how they might be able to help you reach your money goals. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • If you have yet to make a will, you have a few options for doing so. You could hire an estate planning attorney to help you, or you might try doing it yourself using an online will-making software program. When comparing online will makers, take time to consider the range of features offered as well as the cost. Once you’ve written your will, be sure to check your state’s laws to understand what you need to do with regard to having it signed, witnessed and notarized to ensure that it’s valid.

Photo credit: ©iStock/sturti, ©iStock/Moyo Studio, ©iStock/NoSystem images

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