Living Trust Planning: The Best Way to Avoid Probate

Creating an efficient estate plan means avoiding probate upon your death. One of the best ways to avoid probate in Florida is with a revocable living trust. Living trusts can be helpful in avoiding probate, making things easy for your family, and can be helpful for blended families as well. But the truth of the matter is that not everyone needs a living trust.  

The Revocable Living Trust

For most people, a revocable living trust provides an excellent alternative to a last will and testament based estate plan. Generally speaking, you can either have a "will-based" estate plan or a "living trust-based" estate plan as the primary conduit of your assets.  While it gets complex, the concept of a will-based estate plan means having your assets go through probate while a trust based estate plan means having your assets in your trust, avoiding the burden of probate for your heirs, which generally saves the family time and money. 

A revocable living trust is a legal document created by an individual or a couple, called the Settlor (also known as the Grantor), that allows assets to be titled to the Trust or to pour into the Trust upon the Settlor’s death. The living trust is managed by the Trustee. In most cases, the Settlor will also be the Trustee until their death or upon resignation or incapacity, which means that you establish the trust, manage the trust assets and remain the trust beneficiary during your lifetime.

A revocable living trust covers three phases of the Settlor's life:

1. While the Settlor is alive and well;

2. If the Settlor becomes mentally or physically incapacitated; and

3. Upon the Settlor’s death.

The living trust’s main goal is to prevent your assets from going through probate upon your death. After the living trust is established, assets that would normally be subject to probate are transferred to and held in the trust or assigned to the Trust upon the Settlors passing. This critical step involves contacting the financial institutions where the assets are held and changing the name on the account or the beneficiary designation from your own name to the name of the trust. Failure to do this is one of the biggest and most common mistakes Settlor(s) make and the result is that those assets, are not protected from the probate process.  In our office, we go above and beyond most attorneys to make sure your assets are correctly placed into your trust, with a dedicated meeting to address the funding of your Trust.

The Settlor (you) maintains complete control over what is in the trust during your lifetime and you can amend, revoke, or terminate the trust at any time. As Trustee of the Trust, you can spend the money of the trust in any way you want. Upon the Settlor’s (i.e., your) death, the successor Trustee continues to administer the Trust according to your intent and wishes without the burden of probate. Avoiding probate generally saves time, money, and stree for the family because it allows them to focus on what is important, without the distraction and burden of the formal court process that probate brings. 

In our initial consultation, we will review your assets, your situation and your goals before helping you make the best decision for your family. We will discuss probate, and how it would affect your estate plan. At completion of our discussion we’ll determine together if a Will based or Trust based plan would best suit your needs. 

Should you use a Living Trust to Avoid Probate?

Probate is often seen as something most of us want to avoid, and we generally agree that good estate planning tries to avoid probate. It is also our opinion that some people should plan to avoid probate while others may not prioritize the avoidance of probate and all it entails. Each situation is unique and based upon your particular set of circumstances and if you want to make things easier and save your family money upon your death. In accomplishing the goal of a smooth transfer of assets upon your death and avoiding probate, setting up a Living Trsu may be your best option.

Many Different Types of Living Trusts

While the revocable living trust is the start for many estate plans, there are other trusts that may be beneficial to you and your heirs.  These other types of trusts include:

Community Property Trusts

This type of living trust is available for a married couple who not only want to avoid probate but want a good opportunity for tax planning.

Download our Guide to Estate Planning in Florida 

We want our estate planning clients to make the best decisions based upon their own situation and wishes.  To assist you, we are pleased to offer you a free copy of attorney D. “Rep” DeLoach III’s books:

The Top 20 Ways to Protect Your Florida Estate.

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