In creating an estate plan, people often think about avoiding the Florida probate process upon their death. Avoiding probate can save your families time, money and headaches.  While not every estate plan should avoid probate, we generally think that avoiding probate is the best way to make things easier and cheaper for your heirs.  Generally, the best to way avoid probate is through creating a Revocable Living Trust. 

The following are questions and answers on revocable living trusts. This popular estate planning tool can be very useful in a wide variety of situations. Whether a living trust can benefit you and your family or estate is a matter to discuss with our offices. 

What is a Revocable Living Trust?

A Revocable Living Trust (“RLT”) is one of many estate planning tools that can benefit you and your family in the event of death or incapacity. The RLT is an agreement you create for your own benefit during your lifetime. With a revocable trust, you maintain complete control over the trust and may amend, revoke or terminate the trust at any time. Thus, the person establishing the trust essentially owns the assets while maintaining the ability to change the trust at any time prior to death. 

The revocable living trust (RLT) has three roles that you should be familiar with:

  • Settlor: The person establishing the trust who has the power to revoke and amend same. Also known as the Grantor.
  • Trustee: The person in charge of the trust. You are typically the trustee when the trust is initially established. Upon your death, resignation or incapacity, the successor trustee will assume this duty.
  • Beneficiary: The person(s) receiving the benefit of the trust.

Upon the Settlor’s death, the trust becomes irrevocable and the beneficiary changes from the Settlor to the Settlor’s beneficiaries of choice.

What are the Benefits of a Living Trust?

Some of the potential benefits of creating a RLT are as follows: 

  • Probate Avoidance. Assets held in trust will not be subject to the probate process, thereby reducing time delays, publicity and expenses. Probate is the process where the personal representative petitions the probate court to open your estate, proves your will, pay your creditors and distribute the remaining assets to your heirs. We have a separate handout that discusses the Florida probate process in great detail.
  • Privacy. A probated Will is part of the public record. Therefore, anyone can know the general size of your estate and know of such as specific gifts and other personal matters. A living trust is not probated and is not subject to public scrutiny.
  • Protection during Incapacity. A living trust is an efficient way for a successor trustee to manage your assets in the event you become incapacitated. Upon the Settlor’s incapacity, a successor trustee can step in and manage the trust’s assets for the Settlor. This is either done by the resigning in writing, or if this has not been done, removing the trustee with written authorization from two physicians. Appointing a successor allows you to handpick your trustee, who can have a more intimate knowledge of your estate, can know your beneficiaries personally and can have greater financial expertise than a lay person.  You would still want to have a Durable Power of Attorney as part of your estate plan.
  • Avoidance of Multiple Probates. A living trust is particularly useful when you own real property (land) in more than one state. Transferring real property into a trust will avoid probate in both states, saving additional time and money.

Some Potential Negatives of a Revocable Trust:

  • Failure to Transfer Property into the Trust. The Settlor(s) need(s) to understand that if the trust is not funded correctly, the property not transferred into the trust will more than likely be probated. The failure to completely fund your trust is a major problem for clients. As part of our estate planning process, we help make sure your assets are properly funded into your trust.
  • Lack of Court Supervision. While trust assets avoid probate, this also means that an independent judiciary does not supervise the process. Thus, if there are potential problems or conflicts with the intended heirs, it may be advisable to have a judge review the distribution process.
  • Creditors. A living trust does not mean that your heirs do not have to pay your creditors upon your death. Thus, an attorney may need to be hired to help in this process.

Common Questions About Revocable Living Trusts

Is a Revocable Living Trust only for the wealthy?

No. A living trust can help most anyone who wants to avoid the probate process and prepare for incapacity. It is our opinion that not every estate plan needs a living trust, but consultation with a good attorney would confirm the correct estate plan for you and your family.

Can a husband and wife create a joint trust?

Yes. A husband and wife can typically create a joint trust agreement, naming themselves as cotrustees. Under this arrangement, the surviving spouse will retain control of all of the trust assets during his or her life and also have the ability to change the trust’s final distribution. A joint marital trust is not advisable for every situation, such as for those in second marriages and those with separate assets, but it can be useful for many situations.

If my spouse and myself own all of our assets jointly, why should we create a living trust?

While jointly held assets avoid probate upon the first spouse’s death, a trust could still be advisable upon the death of the second spouse. Potential problems then arise if the surviving spouse is incapacitated and could not establish a trust. Additionally, a joint trust eliminates the possibility of a probate upon a simultaneous death.  We set up joint trusts for couples frequently.

What are the income tax consequences to establishing a living trust?

A revocable living trust is “income tax transparent” as long as the Settlor(s) are alive. The trust is disregarded for federal income tax purposes because the Settlor has retained control of the beneficial enjoyment of the trust property.

What assets are transferred into a living trust?

Typically, most probate assets are transferred into the trust, including stocks, bonds, real property, etc. Assets such as life insurance policies and annuities typically are paid to the trust as the remainder beneficiary. You would have to make this change yourself once the trust is signed. IRAs should not be re-titled in the name of the trust and care needs to be followed with this particular asset. 

Should I transfer my homestead property into my living trust?

Generally, yes. While many attorneys disagree on this opinion, it is our belief that this will cause few or no problems at all. When you transfer your home into your trust in the correct manor, it will not effect your homestead for taxation purposes.

Does transferring my assets to my trust protect them from my creditors?

No. Your assets that are transferred to your trust are still subject to your own creditors as if you did not have a trust. Similarly, a revocable trust will not protect your assets if you go into a nursing home. 

Will I have to consult an attorney every time I buy new assets?

No. Once your current assets are transferred to your living trust, you would want to take title to all new assets in the name of the Trust. For new assets such as bank accounts, brokerage accounts, etc., you will need to correctly place those in the trust’s name. 

Why do I have a will if I have a Living Trust?

We generally create a “Pour-Over” will for you, replacing your old will. This will directs any probated assets to your living trust for final distribution under the terms therein. 

What other documents should I have besides a Living Trust?

Everyone should have a living will, a health care surrogate and a durable power of attorney. A living will is your “dying declaration”, which provides directions on removing life support should you be in a persistent vegetative state, end-stage condition or terminal condition. A designation of health care surrogate appoints an individual to make your health care decisions should you be unable to communicate with your physician. Finally, every one should have a durable power of attorney. This gives your agent the authority to manage your non-trust assets on your behalf. 

Who should act as my Successor Trustee?

This is one of the more important questions you can ask when creating a trust. Your successor trustee should have many qualities in order to properly settle your estate. The trustee must be completely trustworthy and honest. There is no better way to cause expense, delay and problems than to appoint an untrustworthy individual. The trustee should be knowledgeable about your heirs and assets. Personal knowledge of your assets and the beneficiaries and their personal situation can be extremely valuable. Other possible qualities include location, financial expertise and someone with the time to properly act as trustee. Finally, the successor should consent to the appointment, be aware of his or her duties and responsibilities and be prepared to act as trustee.

Does everyone need a Living Trust?

No. While a trust can have significant advantages, not everyone needs one. In our opinion, many people have been “oversold” on its benefits. Avoidance of probate is a worthwhile objective in many cases, but probate may not be the horrible process many believe, especially for small estates with simple distributions. Also, a trust mostly benefits your heirs. You must be willing to make the investment in your estate plan in order to save money for your heirs.

How much does probate cost?

The Florida probate process means that your family will need to hire an attorney to go to court. With this, the attorney typically gets paid a fee of around 3% of the probate estate. If, for instance, someone dies with $200,000 in the bank, an attorney would typically get paid a fee of $6,000. In Pinellas County, the court costs would typically be around $1,000 or less.  

What about Irrevocable Trusts in Florida?

A typical revocable living trust does not protect assets from the nursing home. We have a short guide explaining the difference between irrevocable and revocable trusts that will discuss how irrevocable trusts help in this situation.

Want to Learn More? 

If you want to learn more, we have two free books that can help you: