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April 19, 2023

What is a Last Will and Testament? A will is a legal document that outlines your final wishes and dictates how your property will be distributed after your death. In Florida, a will must be in writing, signed by the testator, and witnessed by two witnesses who are not beneficiaries under the will. A will is revocable, meaning it can be changed or revoked during the testator’s lifetime.

One of the primary advantages of a will is that it is easy to create. You can create a will without the assistance of an attorney, although it is recommended that you seek legal advice to ensure your will meets all of the requirements of Florida law. Another advantage of a will is that it is flexible. You can change your will at any time as your circumstances change.

So what are the drawbacks of Wills as Estate planning tools in Florida? One of the primary disadvantages of a will in Florida is that it requires probate. Probate is the legal process that is used to administer a decedent’s estate. Probate can be time-consuming, costly, and can tie up your assets for months or even years. Another disadvantage of a will is that it lacks privacy. Wills are public records, meaning that anyone can access them. Probate is the Court supervised process of distributing your assets to your heirs/beneficiaries. Unless you take steps to affirmatively change your assets (via trust, beneficiary designations, or deeds) then this process will be required. That may matter significantly if you have large creditors against your estate as they would potentially, through the probate process under Florida law reduce the ultimate distribution to your beneficiaries.

What is a Revocable Living Trust in Florida?

A revocable living trust is a legal arrangement that allows you to transfer your assets into a trust during your lifetime. The trust is revocable, meaning you can change or revoke it at any time. You can serve as the trustee of the trust during your lifetime, and upon your death, the successor trustee you have named will distribute the assets to your beneficiaries.

The major advantages of a revocable living trust is that it provides privacy. Trusts are not public records, meaning that the terms of the trust and the distribution of assets remain private. Additionally, a revocable living trust is flexible, allowing you to change the terms of the trust as your circumstances change. One major concept is the control after death of assets to provide incentives and limit distribution over time. A last will and testament cant accomplish the same things that a trust can in that regard. If you have minor children, a Trust is an essential tool to provide for their wellbeing and to provide for your children or grandchildren.

Another great benefit of a Trust is that the succession of assets can occur during incapacity and thus the Trustee is entitled to take over control of assets upon the incapacity of the grantor. This can be a major benefit to assist in the transition of care and assets as the grantor (creator of the trust) ages.

Disadvantages is that it can be more costly and complex to create than a will. Additionally, creating a trust requires transferring your assets to the trust, which can be time-consuming and require additional paperwork.

Here is a summary of some of the major differences:

Last Will and Testament

Revocable Trust

Creation Easy to create More complex to create
Flexibility Easy to amend or revoke Can be amended or revoked
Time and cost Can be time-consuming and costly due to probate process Can be less time-consuming and less costly due to no probate process
Privacy Becomes public record Remains private
Protection from creditors Provides no protection Provides some protection
Management during incapacity Does not provide management Provides for management by a trustee
Estate Tax Planning Provides limited estate tax planning options Provides more extensive estate tax planning options
Long term planning Requires immediate distribution to beneficiaries Allows for long term distribution of assets to beneficiaries.

Florida offers a number of tools for our residents to correctly plan their Estate. The right mix or strategy depends on your circumstances and should be flexible enough to withstand major life changes. Our office provides free no obligation consultations in Estate planning. If your thinking about creating an Estate plan or revising an old one, give us a call.

-Brice Zoecklein, Esq.



Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.