Tallahassee, FL asked in Estate Planning for Florida

Q: My question is about will versus trust estate planning. Trust planning is much more expensive than a will.

But trusts do help avoid probate costs. If nearly all my assets (property, bank/retirement accounts) are already set to beneficiaries I chose - except my car, do I really need a costly trust instead of a less costly will? Is a trust really for a person that has assets that are not already secured to be automatically passed to pre-set beneficiaries?

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1 Lawyer Answer
Phillip William Gunthert
Phillip William Gunthert
  • Estate Planning Lawyer
  • Orlando, FL
  • Licensed in Florida

A: A Trust and related estate planning allows you to indeed avoid probate and save a substantial amount of time, headaches and money if a probate is eventually needed. Even if you have a Trust and you do not timely draft, execute and update it you may find yourself in probate anyway. In addition, I cannot tell you how many times we do a probate with a Trust in place because it was not funded properly and entirely or an asset or assets that came along later were not properly added. A Trust is giving you an opportunity to avoid those headaches that potentially arise and related costs. I would further add, proper estate planning with a Trust and or a Will would include additional documents that are vitally important and necessary, a Durable Power of Attorney, Living Will, Nomination of a Guardian, Florida Healthcare Surrogate, HIPAA Waiver, Final Disposition amongst other helpful and useful documents, and in the case of a Trust, a Pour Over Will. Another issue that arises is in cases where your named beneficiary is deceased and the transfer lapses and that asset must be probated at times or even worse, it goes to someone you do not desire to get it. Here is an example that commonly arises, (Mother creates a life estate for herself intending for the property to go to son, son predeceases mom and the property goes to daughter in law who she hates and has not spoken to in 10 years because of the dislike, or some variation of this). A Trust will let you have control and protect assets longer term for assets to be protected from potential creditors of a child or you can provide for grandchildren and their needs and education and so forth. There are a lot of reasons and variations why you may want and or desire or even need a Trust potentially. Keep in mind, you need to update a Will as well with your life changes as circumstances change and people pass away or fall out of favor, so that is always a concern also and something to stay on top of ongoing. Finally, if you are comfortable with just using Enhanced Life Estate Deeds, other deeds, joint ownership, pay on death and transfer on death accounts, named beneficiaries', you may well be able to accomplish your goals and it may be sufficient. Yet considering the above and potential for more specific control and protections of your assets over a longer term it may well be wiser to consider a Trust. Not everyone makes the best choices in the 20's as they may make in their 40's or beyond, A Trust could help keep assets protected and separate from divorce, creditors and potentially bad decisions of your named beneficiaries. Not everyone needs a Trust, and this I would agree with surely, but weigh and discuss the above minimally.

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