A Last Will and Testament is like a Living Trust in many ways, but they do have certain differences as well. To understand these similarities and differences it is important to understand the probate system in Florida.
Probate is a court-supervised process where there is an identification of the assets of the deceased, payment of his or her liabilities and distribution of those assets to the legal beneficiaries. Probate becomes necessary when a person passes while owning assets that do not have a beneficiary designation.
A Last Will and Testament (“Will”) is a document where a Florida resident mentions the details about the disposition of their property after their death. A Will designates a person who would act as a ‘personal representative’ or executor after death. The personal representative can be your spouse, sibling, parent, child, or other close relative. The Will is then presented to the court. The Will provides substantive rights to the personal representative to carry out your wishes and desires.
The Will thus plays a significant role in the probate process. It directs the court as to who should be receiver of certain properties according to statements made in the Will. While writing a Will, the testator (the one who makes the will) needs to make sure that it is signed by him or her, the signing has to be made in the presence of two witnesses, and the witnesses also have to sign on the Will.
A Florida Living Trust allows an individual to transfer their assets into a trust during their lifetime. This trust allows the individual to use these assets during their lifetime and allows them to name the beneficiaries of the trust after death. A Revocable Living Trust is revocable in full or partially. The trust maker can make as many amendments to the trust as they want but the beneficiaries cannot make any changes to trust after the death of the trust maker.
People generally prefer to use a Living Trust as opposed to a Will to pass on their assets and properties after their death to the named beneficiaries. This is due to the smoother transition provided by a Living Trust. The Will must be supervised by the court in the probate process while a Living Trust allows the beneficiaries to receive the assets without any formal court supervision. The Living Trust also allows a trust maker to specify the timings, and the amount of distributions over an extensive period of time after their death while in a Will, the assets are distributed at one time after the probate process is completed.
Your attorney has the expertise and knowledge to help you decide between the two documents and to answer any questions that you may have. Whether you are interested in working with our estate attorneys or have any questions about the estate planning process, please feel free to contact us!
C. Alvarez Law
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