LAST WILL AND TESTAMENT – Your Last Will and Testament sets forth how and where your assets will be distributed, who will be nominated the personal representative of your estate, and if you have minor children, who will be nominated the guardians of your minor children. Without a proper Will, your assets may pass through intestacy, in which the law dictates who inherits your property instead of you.
REVOCABLE TRUST - A popular estate planning tool in Florida. We can help you determine if a revocable, or “living”, trust is the right structure for the administration of your assets. A revocable trust is a document created by you to manage your assets during your lifetime and distribute the remaining assets after your death. The person who creates a trust is called the “grantor”. The person responsible for the management of the trust assets is the “trustee.” You can serve as trustee, or you may appoint another person, bank or trust company to serve as your trustee. The trust is “revocable” since you may modify or terminate the trust during your lifetime, as long as you are not incapacitated.
During your lifetime the trustee invests and manages the trust property. Most trust agreements allow the grantor to withdraw money or assets from the trust at any time, and in any amount. If you become incapacitated, the trustee is authorized to continue to manage your trust assets, pay your bills, and make investment decisions. This may avoid the need for a court-appointed guardian of your property.
Upon your death, the trustee, or your successor if you were the initial trustee, is responsible for paying all claims and taxes, and then distributing the assets to your beneficiaries as described in the trust agreement.
Your assets, such as bank accounts, real estate and investments, must be transferred to the trust before your death to get the maximum benefit from the trust. This process is called “funding” the trust and requires changing the ownership of the assets to the trust. Assets that are not properly transferred to the trust may be subject to probate. However, certain assets should not be transferred to a trust because income tax problems may result. R. Seth Mann, P.A. can assist you in determining if your assets are appropriate for trust ownership.
Potential benefits of a revocable trust include:
A Revocable Trust can spare your family the trouble and expense of dealing with the Probate Court. This is of particular importance to Florida residents, since Florida's probate system can be cumbersome and family members often live at great distances. If you own real estate in more that one state it avoids the need for probate in multiple jurisdictions.
Avoid Guardianship and Keep the Court Out of Your Personal Affairs
Unlike a Will, which is a death instrument only, the Living Trust also protects you while you're alive by allowing you to appoint someone to handle your business affairs in the event you become incapacitated. This minimizes the chances of guardianship and court involvement in your personal affairs.
Maintain Family Privacy and Discourage Challenges
The Living Trust is a private document and need not be filed with the court or recorded in the public records with the Clerk of the Court. That offers another advantage: privacy. Your dispositions are not public record, as they are with a Will. That also reduces the possibility of your plan being challenged by any disgruntled heirs.
More Control Over Distributions to Beneficiaries
A Living Trust gives you greater ability to control when and how your beneficiaries use their inheritance. For example, you may want your grandchildren to receive their money only when they attain a certain age. If you have an adult child who is not responsible with money, the provisions of your Trust could specifically give him only certain amounts at specific ages, and/or for specific purposes.
Estate Tax Advantages
For couples with taxable estates, the Living Trust can offer additional advantages. A Credit Shelter Trust, (also known as the AB Trust or Bypass Trust), allows couples to pass more tax-free money to beneficiaries by taking full advantage of each spouse's estate tax exclusion. When the first spouse dies, his or her assets equal to the amount exempt from estate taxes flow into a Credit Shelter Trust. The survivor has access to the income from that trust, but not the principal. When the survivor dies, the money from the Credit Shelter is not included in the survivor's estate, thereby allowing twice as much money to be passed tax-free to heirs.
Choosing Your Successor Trustee
When you establish a Revocable Trust as part of your estate planning, you (the grantor, also known as the trustor) make yourself the trustee of the assets you place in the trust. You are still free to sell, trade and give away the assets as you see fit. You may also change the terms of the trust, or revoke it, at any time. But once you pass on, the successor trustee(s) you've designated take control of your assets, and distribute them in accordance with the provisions of your trust.
Choosing a Successor Trustee is a serious decision. The person must be willing to serve, obviously. The Successor Trustee should also have financial experience, sound judgment and adequate time to handle the responsibilities that come with the job. The Successor Trustee should always hire professionals - lawyers, accountants, etc. - to assist with the tasks the trustee lacks the proficiency or comfort to do him/herself. In certain circumstances you may find it preferable to appoint a third party rather than a relative as successor trustee.
For more information relative to other important estate planning documents, please refer to the Estate Planning Section on the Home Page of this site.