What’s the difference between a Will and a Trust under Florida law?
At Longa Law we assist clients with will and trust plans, as well as business succession plans, real estate transfers and deeds for estate planning purposes, trust administration, and probate administrations throughout the state of Florida. Many clients wonder – what is in an Estate Plan? One size does not fit all when it comes to estate planning, so your attorney will counsel and advise for your scenario.
Generally, a Will Plan includes a last will and testament, durable power of attorney, health directives, designation of preneed guardian for minor children, two meetings with your attorney, and a final signing ceremony with witnesses and a notary.
A Trust Plan includes a revocable living trust (joint or individual, with sub-trusts included as necessary), pour-over will, durable power of attorney, health directives, multiple meetings with your attorney, and a final signing ceremony with witnesses and a notary. In either scenario when a client has business entities, such as an LLC, partnership, or corporation, we also review the business documents and create assignments, operating agreements, bylaws, resolutions, and meeting minutes as necessary.
Will v. Trust – What’s the difference?
A last will and testament is like a treasure map. It directs the Judge where you want your treasures to go and who will be in charge of that legal process as your personal representative (AKA executor). Use of a will allows you to name beneficiaries that would not otherwise qualify as heirs, such as non-blood related loved ones and charities. The will does not avoid probate for assets that require transfer of ownership or title at the time of the owner’s death. A judge will review the will and then order the distribution of assets to beneficiaries. This process can be time consuming and costly.
A trust is like a treasure chest. It can hold the treasures and bypass a court administration. A trust is a legal document that, just like a will, contains your instructions for what you want to happen to your assets when you die. But, unlike a will, a living trust can be funded during your life or upon your death, so that those assets sent to the trust avoid a probate court administration. Instead of a Judge directing the administration, your chosen trustees will immediately collect the assets that are directed to your trust and then make sure they are distributed to your beneficiaries as you direct. The trust allows you to stay in control of the assets and can save your heirs from losing time and money in probate.
Do I lose control of the assets I put in my trust?
No, absolutely not. The trust-maker (also known as Grantor) keeps full control of any assets directed to their revocable living trust. As a trustee of your trust, you can do anything you could before – buy and sell assets, make changes to beneficiaries, or cancel (revoke) the trust. You even file the same tax returns. Nothing changes but the names on the title. Sometimes, that does not even change, as we may name the trust as a “pay on death beneficiary.”
Will personal bank accounts go through Probate in Florida?
The answer is, of course, it depends. Bank accounts with no named beneficiaries will need to pass through probate. The heirs will either be determined by a will or by state law (this is known as intestacy). Even with a pour-over last will and testament, if there is no beneficiary listed, the assets will still go to probate to be transferred to the beneficiary or the beneficiary’s trust. This is also the big disadvantage of using a testamentary trust instead of a revocable living trust. It may be cheaper to make a will while you are alive, but much more expensive to probate the estate and then have it transferred to a trust created upon your death, especially if there is a minor and a guardianship proceeding.
Will business bank accounts go through Probate in Florida?
As far as Business Bank Accounts, if the deceased owner is the only signatory, a personal representative may have to include business bank accounts in the probate estate. Banks will not allow checks to be written or withdrawals to be made without an authorized person’s signature, freezing all accounts once they learn of a business owner’s death. Because this may result in bills not being paid and employees not receiving paychecks, business owners must leave detailed instructions. The documents that form the business succession plan will determine who can take over the business in the event of the owner’s incapacity or death. This may avoid probate for the business if a trust is used. Once legal control of the business has been established, the bank needs to be provided with legal documents that prove who has authority, even if it is temporary authority. This may involve having the personal representative or trustee name themselves the new interim president, and they then inform the bank of the change and also provide a new signature card for the accounts. Even if a business is closed or sold, someone will need to wrap up any existing business of the corporation.
As mentioned above, a will does not avoid probate for any properties or businesses, so without proper planning any LLC or Corporate owned assets will go to probate. With advance planning, passage of ownership of business assets may be specified in the business succession documents that the owner created prior to his or her passing.
How much does a trust plan cost?
We cannot give an accurate price quote without a consultation because there are numerous factors that we consider to create a plan that meets your specific needs. Generally, there are 3 factors we consider: (1) the total assets (real estate, financial accounts, businesses) that a client owns, (2) the number of beneficiaries and their respective concerns; and (3) the complexity of the trust. All of this equates to the time it will take to draft the trust and counsel clients regarding their scenario. A joint trust with multiple beneficiaries should generally take a minimum of ten (10) hours of attorney time.
Clients often think they have a simple case, but after examining all the facts, we discover that there are other issues that also need to be addressed for their plan to work as intended. For instance, sometimes one trust can have multiple sub-trusts or beneficiaries. My job is to ask the questions you didn’t realize needed to be asked and discover issues you may not have previously thought about. Whether we use a will or trust plan, as your attorney, I will provide counsel and advice, so you have the knowledge you need to make the best decision for yourself and your loved ones. If you would like to schedule a time to speak with me, please select a time on my calendar.