When you hear the saying “you can’t take it with you”, you either smile or laugh because we visualize a picture in our mind of piles of money in an open coffin. Or we squirm because we realize that we have never prepared a Will or a Trust.
Wills And Trusts
If a person dies, owning assets that are titled in their name alone, for which there is no joint owner, and when there is no named beneficiary, those assets will generally have to pass through probate. If that deceased person has no Will or Trust, the State of Florida has established laws (Florida Statute Chapter 732, F.S.732.101, F.S. 732.102 and F.S. 732.103) that directs to whom the assets will be left. The provisions of those statutes apply to every resident of Florida who dies without a Will or Trust, with no exceptions, often producing harsh and unfair results, especially in blended families.
To avoid those unfair results, it is important that you put your wishes in writing, and that the documents be prepared with the assistance of a qualified estate planning attorney. Do-it-yourselfers save some money, but often produce documents that create nothing but complicated messes, that are far more expensive to “clean up” than the amount that an attorney would have charged to prepare the original document. Getting forms off of the internet can help, but if the documents are not prepared in accordance with Florida laws, the documents may not be admissible in Florida Courts.
Therefore, I would urge you to have a Will or Trust prepared, by an experienced attorney, who can help you carry out your wishes.
A valid Last Will and Testament will name your Personal Representative (aka as an Executor or Administrator), will specify to whom your assets will be left, will list any conditions as to the distribution of those assets (if there are minors), and direct that your legal debts be satisfied. It is wise to name alternative Personal Representatives, in the event that your first choice is unable to act, and contingent beneficiaries in the event that your named beneficiary pre-deceases you.
While a young person can inherit if they are 18, it is often not a good idea to leave assets to a young person who may squander everything that you spent a lifetime to accumulate. Therefore, you can list the age at which a beneficiary can get full control of their inheritance (for example, at age 25, or 50% at age 25 and the balance at age 30) while naming the person who will manage those assets until they are fully released.
You can also specify how your remains will be handled (burial, cremation) and where they will be laid to rest (cemetery, mausoleum, or ashes on top of the fireplace mantle).
The drawback to having a Last Will is that it will not necessarily avoid probate. In fact, it is designed so that it will orderly and efficiently pass through probate.
The alternative to a Last Will is a Living Trust (commonly called a Revocable Living Trust), which is designed to replace a Will. The basic theory behind a Living Trust is that a person or couple will transfer ownership of their assets (on paper only) to their Trust, or make certain that their assets will be left to their Trust when they die.
By taking these actions, those assets will not have to pass through probate, because the “owner” of those assets (the Trust) has not died. Having assets in a Trust during your lifetime does not affect the way you conduct your everyday affairs, and does not change the way you file your taxes. Placing an item in a Revocable Trust, does not cause you to lose control of your asset and does not prevent you from changing your mind and removing the asset from the Trust. Flexibility is one of the main advantages of a Revocable Trust. Not only can you add or remove assets easily, but you can amend or change other terms of the Trust easily.
Most importantly, though, a Revocable Trust that is properly prepared and funded will avoid probate, thus saving time (probate often takes more than a year to complete), money (the cost of a trust is often much less that the cost of probate), and insures privacy (because the Court is not involved, your assets, your net worth and your heirs will not become ‘public record’). In addition, because the courts are not involved, provisions for young children and less-than-mature young adults are easier and cheaper to manage.
The Trust takes effect immediately upon signing it, unlike a Will which does not take effect until you die. During your lifetime, you and your spouse are in total control of the Trust. In the event of your disability, or the inevitability of death, the Successor Trustee that you have chosen will handle your affairs. The Successor Trustee can be given specific guidelines, or broad discretion, to handle your wishes, looking out for your heirs, just as you would take care of them if you were still alive.
If a person dies, owning assets that are titled in their name alone, for which there is no joint owner, and when there is no named beneficiary, those assets will generally have to pass through probate. If that deceased person has no Will or Trust, the State of Florida has established laws (Florida Statute Chapter 732, F.S.732.101, F.S. 732.102 and F.S. 732.103) that directs to whom the assets will be left. The provisions of those statutes apply to every resident of Florida who dies without a Will or Trust, with no exceptions, often producing harsh and unfair results, especially in blended families.