Legal Intelligence
Do You Need a Will or Trust: Tips on When You Should Start Considering Creating One
By Blanca Greenstein, Esq., Andrew Rothstein, Esq. & Nadia Hoosien, Esq. with Greenstein & Associates
Protecting your family and business in the event of a death is one of the most important life planning decisions a person will have to make in their lifetime. Unfortunately, it is a common fact that most Americans will not have a Trust or a Will in place to protect their loved ones or business. It has been a widespread belief for most, that a Trust or Will is something people only consider upon reaching their retirement age, if at all. There are however many benefits of having either a Trust or Will in place, which this article will highlight in the following manner: (I) the differences between a Trust and a Will, and (II) points to consider when to create one, and which option is right for you.
(I) Differences between a Trust and a Will
A Trust is designed to provide legal title to property for the benefit of another, and is considered a Revocable Trust, unless the instrument expressly states to be irrevocable. The most common reason to create a Trust is to avoid probate court and costly attorney’s fees. The most common type of Trust is also known as an Express Trust, which is primarily used when the owner has an explicit intention to create it for a particular purpose, such as creating a Trust for his or her beneficiaries or a charity of his or her choice. It is important to note that a Trust requires certain elements to be met in order to be viewed and treated as a valid Trust. Such elements require the owner’s intent to divide his or her property into legal interests that have a legal purpose. The Trust must have property that is transferable, and can include any property, including life insurance proceeds. And finally, a Trust requires beneficiaries and a trustee of legal age, competence, and capacity to enter into contracts.
A Will on the other hand does go through probate court, and is designed to have a person manage your estate, which includes distributing your property at death. The most common type of Will is known as a Testamentary Will, and is a formally prepared document that requires your signature, as well as two other signatures in the presence of witnesses. It is important to note that the State of Florida does not recognize a Holographic Will, which is a document written outside of the presence of witnesses.
(II) What to consider when creating a Trust and Will, and which option is right for you
Nobody wants to think about the time when they are no longer with family and loved ones but planning for the future is essential to make your wishes known and to provide for your loved ones. To put it plain and simple, when any life-changing event occurs, you should update your Will and/or Trust. A life-changing event includes marriage, having kids, purchasing property, buying a business, divorce, or when health issues arise. Because the majority of American’s do not have a Trust or Will, it is important you understand the process of what happens without either instrument. If neither a Trust nor Will is in place, the State will administer the distribution of your property following a formula set out in the Florida Statutes. The formula is primarily designed to distribute property to the deceased’s surviving spouse and children. The downfall in dying intestate, is that the process is a time consuming and emotionally draining experience for your loved ones that can leave them in a difficult financial state.
Remember, you do not have to be a millionaire or have an abundance of real estate in order to put a Trust or Will in place. The purpose of either instrument is to provide for your loved ones, while ensuring that your goals and wishes will be seen through. The Law Offices of Greenstein and Associates understand the difficulty in planning for your future, and our expertise and experience will provide you with comfort and confidence in dealing with these sensitive issues.
Disclaimer: This column is not intended to provide legal information or advice. All data and information provided on this column is for informational purposes only as well as to give general information and a general understanding of the law, and not to provide specific legal advice. By reading this column you understand that there is no attorney client relationship between you and the publisher. This column should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.