The two primary tools that families use to protect their financial assets are wills and trusts. Your family’s individual circumstances determine which of these are the best option for you. Rest assured, my recommendations will be based on serving the needs of your family by the most effective means possible.
The definition of a will
A will – sometimes referred to as a “Last Will and Testament” – is a legal document you create to communicate your wishes regarding what should happen to your estate after you pass. You can also specify other intentions in your will, such as:
Who you want to care for your minor children
What you want to happen to your remains
Other special terms you feel are necessary
When someone passes on without having created a will, every decision that would have been covered in the will is made by a judge according to state statute. And it’s very likely that these decisions will not reflect your true wishes. Plus, the process by which these decisions are made, referred to as, “probate,” can take a long time, even if there are no disagreements among family members. Legal representation and other expenses incurred during probate can also add up to a lot of money. As a result, an unnecessary burden is created for surviving family members during a time that they are also grieving the loss of a loved one.
The definition of a trust
The most common type of trust is a “living trust,” and its primary benefit to you and your family is that the assets placed in a trust do not go through probate upon your passing. Properly executed, a living trust allows you to transfer assets into it and continue to have access to them. The assets are then distributed directly to your beneficiaries after your death. Plus, if you become incapacitated, having a living trust means there will be no need for a court-administered guardianship in control of your assets. Instead, a beneficiary you have chosen manages the assets in the trust.
The written document that establishes the living trust is called the “trust agreement” and it must be properly written and executed in order to be valid. The trust agreement clearly defines who the grantor is, who will be the trustee managing the trust upon the grantor’s passing, and who the beneficiaries are. If set up correctly, a living trust has almost no effect over the grantor’s management and use of his or her own assets while alive.
For many people, an advantage of creating a living trust is that it is a private agreement between two people – the grantor and the trustee – that doesn’t need to be recorded in the public records. Therefore, it avoids the probate process entirely, which keeps a great deal of your family’s financial information out of the public record.
Why is an attorney necessary?
There is no legal requirement in Florida that you must hire a lawyer to create a will or a trust. However, it is a complex process. If the documentation is not handled correctly, it opens up the possibility that the entire will or trust may be invalid or ineffective.
A trust is especially complex. Setting up the trust involves the participation of at least one additional person – the trustee who you select to manage the assets held in the trust. Also, because there are often unique terms of the trust, the documentation is more complicated. If not set up properly, a trust could be poorly drafted or executed, which may lead to problems and confusion.
Clearly, these are sensitive topics that are often difficult for families to discuss. However, once you have completed your estate planning and are satisfied with the outcome, your family will have a sense of certainty that will be a benefit to all involved.
At Nexus Legal Solutions, an initial consultation is always free and informative, and is a service we’re happy to provide. For more information, please call 407-900-7722. Or visit our Contact Page and we’ll get back to you as quickly as possible.