An Experienced Florida Will and Trust Lawyer Explains the Difference Between a Will and a Trust

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By Gary M. Landau, Esq.

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Experienced Florida Will and Trust Lawyer Explains Difference Between Will and Trust | Call 954-979-6566

In three decades of serving South Florida clients, it’s clear to us that people have a lot of questions about both wills and trusts. Both of these are legal instruments that can play a role in crafting and implementing a robust estate plan. Not everyone needs both of these, however. Understanding the differences between wills and trusts is vital for establishing an estate plan that works for you and your loved ones.

This blog clarifies the differences between wills and trusts and explains how a knowledgeable will and trust lawyer can help you create an estate plan that considers your unique situation. Continue reading to learn more, then contact the LAW OFFICE OF GARY M. LANDAU, P.A., at (954) 979-6566 to schedule a free initial consultation.

What Is a Will?

A will is a legal document that tells the courts how you want estate assets to be distributed upon your death, including money, personal property, real estate, and other items. To be valid, a will must adhere to Florida law, which is why it is important to consult an experienced will attorney to ensure the will you create meets all legal requirements.

Accuracy in drafting the contents and in executing a Florida will is crucial, because once a person passes away and the will is filed, no changes can be made. The Law Office of Gary M. Landau has seen many instances where probate courts have invalidated inadequately drafted wills. When this happens, assets are distributed based on legal formulas (e.g., first the spouse, then the children…) rather than according to the decedent’s desires.

Married couples need to make two separate wills, one for each spouse.

Understanding What Is Included in a Will

A will lists the names of all beneficiaries who will inherit your assets along with the percentages of the assets each person will receive. Assets that fall outside of a will, such as a life insurance payout or bank accounts listing a direct beneficiary, are not included.

A will is also used by people who have a minor child to designate the choice of a legal guardian should you tragically pass away while your child is underage.

The document also designates a personal representative, which is someone who will work with a probate attorney to handle details of the estate and the distribution of assets during the probate process.

How a Will Helps the Probate Process

Probate is a legal process that is overseen by the Florida Probate Court. Probate allows a person’s assets to ultimately be distributed to their beneficiaries according to their will, which is deposited in the court records after a death.

Probate involves various steps, including:

  • Identifying all assets to be distributed
  • Notifying creditors whom the deceased person still owes money to, including the hospital and funeral  home, and settling those debts
  • Liquidating assets such as real estate
  • Distributing assets to beneficiaries according to the person’s will

The personal representative named in the will oversees all of these steps, along with the probate attorney. The PR must be a reliable adult (but not a convicted felon) living in the state of Florida, or it can be an individual who does not live in Florida if they have a familial relationship, such as children, siblings, nieces or nephews, and other relatives.

Because changes in life circumstances are inevitable, it is important to conduct periodic reviews of a will and make any needed adjustments. As long as the person making the will, known as a testator, has mental capacity he or she can make alterations based on evolving desires, relationships, family situations, and other circumstances.

What Is a Florida Trust?

A trust is a separate document from a will. A trust is a legal tool that allows individuals to protect, grow, and/or transfer assets. Once assets are placed into a trust the trust becomes the legal owner of these assets.

Trusts involve people or organizations that serve three separate roles:

  • The Grantor: the individual who establishes the trust
  • The Trustee: the person responsible for the management and administration of the trust
  • The Beneficiary: the individual entitled to the benefits of the trust’s assets

In some cases, all three of these roles can be filled by the same person.

Trusts are created for many different purposes. It is important that the Grantor is clear about the reasons they want to create a trust before doing so.

Benefits and Options of Trusts

When you transfer assets into a trust, you establish a legal entity that becomes the official owner of the property. As the trust creator (grantor), you can maintain complete control over your property throughout your lifetime by appointing yourself as the trustee.

However, in the event of your incapacitation or passing, a pre-selected successor trustee will step in to manage the trust or distribute assets to your chosen beneficiaries.

Florida Trusts

Florida law recognizes various types of trusts, including:

  • Living trusts: The most prevalent type in Florida, living trusts allow individuals to maintain control of their assets during their lifetime, but then have a successor trustee step into the role upon their passing
  • Special needs trusts (SNTs): For individuals with medical conditions affecting their ability to manage assets, these trusts put someone else in charge of their finances
  • Dynasty trusts: Utilized by the ultra-wealthy to oversee family finances and transfer money to succeeding generations

Revocable vs. Non-Revocable Trust in Florida

Trusts fall into two main categories: revocable and irrevocable.

As the name suggests, a revocable trust allows the grantor to modify or revoke it at any time during their lifetime.

Revocable trusts are used by some older people because they think they will not need to probate their assets if they have this trust. However, probate will still be needed for any asset held by the individual that is not in the trust when the person passes. Because many people do not fully fund their trust with everything they own (or assets they acquire after the trust is created), revocable trusts don’t always allow someone to avoid probate.

Irrevocable trusts cannot be easily dissolved. In some instances, you can amend or dissolve an irrevocable trust, but it usually involves a more intricate legal process that often requires a court petition.

Unlike with revocable trusts, the grantor and trustee are separate individuals. The trustee manages all the assets in the trust, with the grantor and beneficiaries generally having no direct access to the trust assets.

An experienced estate planning attorney can clarify the distinctions between revocable and irrevocable trusts as they pertain to your unique circumstances.

How Do Wills and Trusts Differ?

When creating a will and/or a trust, consider these crucial factors:

  1. Trusts specifically manage the assets that have been put into the trust.
  2. Wills, when properly drafted, describe the distribution after death of all of the individual’s assets.
  3. Trusts may streamline estate administration and avoid probate. However, this is only the case if trusts have been funded with all of a person’s assets. There is a cost to set up a trust and to fund it with assets like real estate, whose deeds must be transferred.
  4. Trust documents are not filed in court. This means it is crucial that the document creating the trust be put someplace the successor trustee can find it. Without this document, problems can ensue in passing trust assets to the successor(s).
  5. Wills should still be drafted by people who have a trust (known as a pour-over will) to cover the distribution of assets not included in the trust.

To effectively plan your estate, seek the support of a will and estate lawyer who can guide you in making the right choices. You should additionally seek out the advice of a financial advisor and/or tax professional.

Do I Need A Will and a Trust?

Many individuals often wonder whether having a will and a trust is necessary. While a will is essential for everyone, a trust may not necessarily benefit all individuals.

Trusts may be especially valuable for people with dependents or beneficiaries with special needs. And people with extraordinary wealth use them to pass dynastic wealth to others.

For everyone else, whether to establish a trust or rely solely on a will depends on your individual preferences. Some people desire to put their assets in a trust to potentially make the distribution of their assets easier after they pass away. However, this is only the case if all assets are put into the trust and if the original document creating the trust is available to the successor(s).

Healthy individuals with moderate assets may need only a will. In Florida, assets like a bank account that are jointly owned or have designated beneficiaries do not require probate. For married individuals, most assets are usually held jointly with a spouse.

Do I Need A Florida Estate Planning Attorney to Set Up A Will or A Trust?

It is important that legal documents like a will or a trust are created by an experienced estate planning attorney. This would include a valid, legally binding will and possibly a trust if appropriate for your circumstances.

Don’t rely on the internet to help you with these crucial documents, as do-it-yourself forms may not be accurate to your individual circumstances or be specific to the state of Florida.

During an initial free consultation, a wills and probate attorney can guide you in creating a customized estate plan that complies with relevant laws and protects the future of your loved ones. Even after the estate planning process is completed, you should check in with your estate planning attorney every five or ten years to ensure these documents continue to reflect your wishes.

Cost Implications: Flat Fee or Hourly Rate?

You may encounter different cost structures when hiring a South Florida estate planning attorney. Some experienced attorneys offer flat fees, especially for straightforward estate planning tasks like writing a will or overseeing a standard probate.

Others may charge hourly rates, particularly for processes like setting up complex trusts. Discussing cost estimates during your initial consultation will help ensure you’re comfortable with your attorney’s fee structure.

Turn to the LAW OFFICE OF GARY M. LANDAU, P.A. for Knowledgeable Guidance with the Estate Planning Process

Knowledge, competency, and commitment are paramount when searching for an estate planning attorney to guide you through the legal process. Whether you want to update an existing plan or have questions about estate plans in general, the Law Office of Gary M. Landau offers support and answers concerning the legal documents impacting your family and future.

With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team of legal professionals are uniquely positioned to help you with your probate and real estate needs in South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

Copyright © 2023. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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